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LIBRARY 


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VALUABLE    LAW    BOORS,  &c. 


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PHILADELPHIA. 


HARRIS'S  MODERN  ENTRIES,  or  approved  Precedents,  of 

Declarations,  Pleadings,  Entries,  and  Writs  ;  to  which  are  prefixed  forms  of  Affidavits, 
References,  Awards  and  Certificates,  and  select  precedents  in  Conveyancing,  comprising 
all  that  is  valuable  in  the  compilation  of  the  late  Thomas  Harris,  Esquire,  newly  ar- 
ranged, with  additions  and  improvements,  by  Hugh  Davey  Evaits,  of  the  Baltimore  Bar, 
author  of  an  Essay  on  Pleading,  with  a  view  to  an  improved  system,  2  vols. 

This  is  one  of  the  most  valuable  Book  of  Forms  extant,  and  one  that  all  members  of 
the  Bar,  Clerks  of  Courts,  Magistrates,  and  others,  will  find  absolutely  necessary  in 
drawing  up  various  legal  documents  that  require  special  attention. 

BLACKSTONE'S  COMMENTARIES,  by  Christian,  Chitty, 

Lee,  Hovendon,  and  Kyland,  with  references  to  American  Cases,  by  a  member  of  the 
New- York  Bar,  in  2  vols.  8vo. — New  edition. 

CHITTY  ON  CONTRACTS,  a  new  and  practical  Treatise  on 

the  Law  of  Contracts,  not  under  Seal,  and  upon  the  usual  Defences  to  actions  thereon ; 
with  corrections  and  additional  references  to  recent  English  and  American  Decisions,  by 
Francis  J.  Troubat,  Esq.,  second  American  edition,  in  one  vol.  8vo. 

All  persons  of  business  will  greatly  benefit  themselves  by  an  attentive  perusal  of  this 
valuable  work. 

CHITTY'S  PLEADINGS,  New  Edition.— A  treatise  on  Plead- 

ing,  with  a  collection  of  practical  precedents  and  notes  thereon,  by  Jos.  Chitty,  Esq.  of 
the  Middle  Temple,  Barrister  at  Law.  Sixth  American  from  the  last  London  edition, 
corrected  and  enlarged,  with  notes  and  additions,  by  John  A.  Dunlap,  Esq.,  and  addi- 
tional notes  and  references  to  later  decisions,  by  Edward  D.  Ingraliam,  Esq.,  3  volumes, 
royal  8vo. 

CHITTY'S  CRIMINAL  LAW.— A  practical   Treatise  on    the 

Criminal  Law,  &c. 

CONDENSED  ENGLISH  CHANCERY  REPORTS,  7  vols. 

8vo.  This  work  is  held  in  the  liighest  estimation  by  all  the  distinguished  of  the  Ame- 
rican Bar,  and  no  Law  Library  can  be  considered  complete  without  it. 

Chancellor  Kent,  in  speaking  of  the  great  value  of  this  work  to  all  the  American  Bar, 
observes  :  "  It  has  been  judiciously  edited,  and  is  a  work  that  was  much  wanted.  It 
was,  indeed,  indispensable  to  the  circulation  in  this  country  of  English  Equity  Law, 
(the  best  code  in  the  world  of  ethical  principles,  justly  and  truly  applied)  for  who  could 
buy  or  become  willing  to  wade  through  all  the  voluminous  pages  of  English  Chancery 
Decisions,  when  one  half  of  the  number  is  cumbersome  and  useless  with  us." 

The  gentlemen  of  the  bench  and  bar  of  the  United  States  have  long  and  justly  com- 
plained of  the  number  and  expense  of  Law  Books,  and  particularly  of  the  heavy  cost 
of  English  Chancery  Reports.  The  present  is  an  eftort  to  reduce  the  number  of  vo- 
lumes, and  to  lessen  the  expense  of  those  works  at  least  three-fourths. 

The  great  demand  for  this  invaluable  work  is  the  best  evidence  of  the  high  estimation 
in  which  it  is  held  by  all  the  distinguished  of  the  American  Bar. 

The  subsequent  volumes  of  this  work  will  contain  the  whole  of  the  later  Chancery 
decisions  in  the  High  Court  of  Chancery  and  in  the  Vice-Chancellor's  Court,  con- 
densed ;  they  will  be  published  here  immediately  after  their  appearance  in  England. 

The  price  to  subscribers  is  $^  per  volume,  handsomely  bound  in  calf;  to  non-gubscri- 
bers,  §5  50  per  volume. 

^  RUSSELL'S    REPORTS    OF  CASES  in  the   High  Court  of 

Chancery  during  the  time  of  Lord  Chancellor  Eldon,  Vol.  L     The  second,  third,  and 


LAW  BOOKS. 


Amrth  volumes  of  Itusscll's  Reports  In  tlic  same  Court  are  contained  in  the  Condensed 
F^nulish  Chancery  Reports,  Vol.  II[. 

Thi-  suhscrihcvs  to  Conilfu.icd  Enfflish  Chancery  lieporta  ran  procure  this  volume 
separate  to  complete  their  sets;  and  as  there  are  but  a  few  copies  remaining  unsold, 
those  who  may  wish  to  complete  their  sets  will  do  well  to  make  immediate  application  to 
Cirijic  »fe  Elliot,  or  any  hookseller  in  the  iieighhouriiood  of  their  residence. 

FONBLANQUE-S  TREATISE  OF  EQUITY,  with  the  addi- 

tion  of  numerous  References  and  Notes  to  all  the  American  Decisions,  by  A.  Laussat, 
Esq.  Second  American  from  the  last  London  edition.  Chancellor  Kent  particularly 
notices  the  great  value  of  this  edition  to  the  American  Bar, 

SAUNDERS'  REPORTS,   in  .3  vols.  Svo.     The  Reports  of  the 

most  learned  -Sir  Kdmnnd  Saunders,  Knt.  late  Lord  Chief  Justice  of  the  King's  Bench, 
of  several  Pleadings  and  Cases  in  the  Court  of  Kinc's  Bench.  Edited,  with  notes  and 
references  to  the  Pleadings  and  Ca.ses,  by  John  Williams,  one  of  His  Majesty's  Ser- 
jeant,s  at  Law.  With  references  to  the  later  decisions.  By  John  Patterson,  of  the  Mid- 
dle Temple,  and  Edward  Vaughan  Williams,  of  Lincoln's  Inn,  Esqrs.,  Barristers  at 
Law.     'i'hc  lifth  American,  from  the  last  London  edition. 

This  new  edition  of  1833,  contains  one-third  more  matter  than  any  previous  one, 
(except  the  fourth.) 

We  all  know  the  great  learning,  wisdom,  and  integrity  of  the  author,  and  do  for  the 
common  good  allowand  approve  the  printing  and  publishing  of  this  book,  entitled,  Les 
Reports  du  tres  erudite  Edmund  Saunders,  Chevalier,  &c. — Jeflrcys.  Tliomas  Jones. 
W.  Montague.  Edward  Atkins.  W.  Gregory.  J.  Charleton.  Creswcll  Levinz.  T. 
Street.     Francis  Withins.     Richard  Holloway.     T.  Walcot.     Robert  Wright. 

This  work  is  one  among  the  most  valuable  of  the  English  Reports,  to  the  American 
Law  student  and  practitioner. 

TOLLER  ON   THE  LAW  OF  EXECUTORS  AND  ADMI- 

NI8TRA'I"ORS,  with  Notes  and  References  to  American  Authorities,  by  Edward  D. 
Ingraham,  Esq.,  in  1  vol.  Svo. 

The  above  work  is  not  only  absolutely  necessary  for  every  gentleman  of  the  Bar,  but 
will  be  found  a  very  valuable  guide  to  every  individual  who  is  left  an  executor  or  admi- 
nistrator, 'i'he  copious  notes  added  to  this  edition  by  the  American  editor,  render  it 
very  valuable. 

RUSH  ON  THE  HUMAN  VOICE.  Embracing  its  Physiolo- 
gical History,  together  with  a  System  of  Principles,  by  which  criticism  in  the  art  of 
Elocution  may  be  rendered  intelligible,  and  instruction  definite  and  comprehensive.  To 
which  is  added,  a  brief  Analysis  of  Song  and  Recitative  ;  second  edition,  with  additions. 
By  James  Rush,  M.  D. 


Abbot  on  Ship[)ing,  by  Judge  Story. 
Adams  on  Ejectment,  new  edition. 
American  Chancery  Digest. 
American  Common  Law. 
American  Precedents,  by  Oliver. 
Angell  on  Limitations.  , 

Anthon's  Blackstone,  new  edition. 
Archbold  &  Christian's  Blackstone,  4  vols. 
.\rchbold'8  Ciiminal  Pleading,  &c. 
Archbold's  Forms  and  Entries. 
Atkyn's  Reports,  by  Saunders,  3  vols. 
.\merican  Citizen,  the  rights  of. 
Angell  &  Aimcs  on  Corporations. 
Do.  do.     on  Water  Courses. 

Balantine  on  the  Statute  of  Limitations. 
Bay's  South  Carolina  Reports,  2  vols. 


Beames'  Pleas  in  Equity. 
Bingham  on  Infancy  and  Coverture, 
Blackstone's  Commentaries,   by   Christian, 

Archbold,  and  Chitty,  2  vols, 
Bridgman's  Digested  Index,  4  vols. 
Buriamaqui's  Natural  and  Political  Law. 
Brackenridge's  Law  of  Miscellanies. 
Brady  on  Distress. 
Blake's  Chancery  Practice, 
Brease's  Illinois  Reports. 
Bailey's  Digested  Index. 
Branche's  Maxims  in  Equity. 

Condensed  Reports  of  the   Supreme  Court 

of  the  United  States. 
Coventry  and  Hughes's  Digest,  2  vols. 
Constitutional  Reports. 


LAW  BOOKS. 


. 


Cushing's  Trustee  Process. 

Chitty's    Criminal  Law,  3  vols.,  new  edi- 
tion. 

Crabb's  History  of  the  English  Law. 

Cases  in  Chancery,  1  vol.  8vo. 

Caines's  New- York  Term  Reports,  3  vols. 

CLitty  on  Contracts,  1  vol.  8vo. 

Chitty's  Pleadings,  3  vols.,  new  edition. 

Chitty  on  Bills  of  Exchange,     do. 

Clancey  on  the  Rights  of  Married  Women. 

Comyn  on  Contracts. 

Crown  Circuit  Companion. 

Cruise  on  Real  Property,  4  vols. 

Comyn's  Digest,  8  vols. 

Coxe's  New  Digest,  Supreme  Court. 

Condensed   English   Chancery   Reports,  7 
vols.  8vo.     [To  be  continued.] 

Coke's  Abridgment,  1  vol. 

Chitty's  Practice,  3  vols. 

Call's  Virginia  Reports,  6  vols. 

Chipman  on  Contracts. 
Do.       on  Government. 

Cowper's  Reports. 

Collyer  on  Partnership,  a  new  work. 

Chitty  on  Contracts. 

Cooke's  Institutes,  3  vols.,  with  Notes  and 
Additions  by  Thomas. 

Davies'  Precedents. 

Dunlap's  Practice. 

Durnford  and  East's  Reports,  4  vols. 

Eden  on  Injunctions. 
English  Common  Law  Reports,  26  vols. 
Evans  on  Pleading,  a  new  work. 
Edwards'  Juryman's  Guide. 
English  Ecclesiastical  Reports,  6  vols. 
Do.     Exchequer   Reports,  condensed,  6 
vols. 
Espinasse  on  Evidence. 

Fell  on  Mercantile  Guarantees. 
Francis's  Maxims  in  Equity. 
Fearne  on  Remainders. 
Fonblanque's  Treatise  of  Equity,  new  edi- 
tion. 

Gow  on  Partnership. 

Graham's  Practice. 

Griffiths'  United  States  Register,  2  vols. 

Harris  and  M'Henry's  Maryland  Reports, 

4  vols. 
Hovenden's   Supplement  to  Vesey   Jun's. 

Reports,  2  vols. 
Hovenden  on  Frauds. 
Hughes  on  Insurance. 
Harrisson's   Analytical   Digest    of   all    the 

Reported  Cases,  3  vols. 
Hall's  Digested  Index,  2  vols. 


Hill's  Reports  of  the  Court  of  Appeals  of 
South  Carolina,  2  vols.,  containing  the 
lale  Precedents. 

Hall's  Reports  of  the  Superior  Court  of 
the  City  of  New-York,  2  vols. 

Jacobsen's  Sea  Laws. 

Johnson's  New- York  Term  Reports,  20 
vols. 

Johnson's  New-York  Chancery  Reports, 
7  vols. 

Johnson's  Digest  of  New-York  Reports, 
2  vols. 

Jones  on  Bailments,  a  new  edition,  im- 
proved. 

Kent's  Commentaries  on  American  Law, 
4  vols. 

Law  of  Fixtures. 

Livermore  on  Agency,  2  vols. 

Long  on  Sales  of  Personal  Property. 

Laws   on    Pleading  in    Assumpsit,    with 

notes,  by  J.  Story. 
Livingston's  Criminal  Code. 
Law  of  Lien,  by  Whittaker. 
Lambert's  Treatise  on  Dower. 
Law  Glossary. 

Matthews  on  Presumptive  Evidence. 
Merrivale's  Chancery  Reports,  3  vols. 
Montague  on  Lien. 
Montague  onjSet  Off. 

Maddock's   Reports  in  the  Vice  Chancel- 
lor's Court,  3  vols. 
M'Cord's  South  Carolina  Reports,  4  vols. 
Maul  and  Selwyn's  Reports,  2  vols. 
Maddock's  Chancery,  2  vols. 
Merchant's  Law  Book. 
Vol.  6th  Munford's  Reports. 
Munford's  General  Index. 
Montague  on  Partnership. 
Vol.  6th  Maule  and  Selwyn. 
JVIitford  on  Pleading. 

North  Carolina  Reports.     Complete. 
Noy's  Maxims. 

Oliver's  Law  Summary. 
Oliver  on  Conveyancing. 
Ohio  Reports,  4  vols. 

Peake's  Evidence,  by  Norris. 

Peter's  Circuit  Court  Reports. 

Pickering's  Digest. 

Peters's  Supreme  Court  Reports,  9  vols. 

Roscoe  on  Evidence. 
Reeves  on  Descents. 


J^AW  BOOKS. 


KunscH's  Keports  of  Cases  in  the  High 
Court  i>l"  Cliancery  liuring  Uie  time  of 
Lord  (■|i;inoollor  ElJon,  1  vol. 

Kulhcrronrs  Institute. 

HolxTts  oil  Frauds,  new  edition. 

Say's  Political  Economy,  new  edition. 

Sturkie's  Nisi  Prius  Reports,  2  vols. 

JStarkie's  Criminal   Pleading. 

Starkie  on  Slander. 

Stul>l>s'  Crown   Circuit  Companion. 

Saunders'  Reports,  3  vols.,  new  ed. 

Stearns  on  Real  .\ction. 
story's  Pleading,  hy  Oliver, 

Story  on  Hailment. 

Suf^den  on  Powers  and  A'^endors. 

Sergeant's  Constitutional  Law. 

Saunders  on  Pleading,  2  vols. 

Story's  Commentaries,  3  vols. 

Starkie  on  Evidence,  2  vols.,  new  edition. 

Story's  Commentaries  on  the  Constitution 
of  the  I'nited  States,  3  vols,  and  ]    vol. 

Stevens'    and    Bcneckc   on    Average    and 
.Marine  Insurance. 

South  Carolina  Reports  of  the   Constitu- 
tional Court. 


Toller  on  the  Law  of  Executors  and  Admi- 
nistrators, 1  vol. 
Taunton's  Reports,  4  vols. 
Terms  dc  la  ley. 

Vesey,  Jr's.  Reports,  24  vols. 

Vescy's,  Senior,  Reports,  3  vols.,  new  edi- 
tion. 

Vernon's  Chancery  Reports,  by  Raithby,  2 
vols. 

Vattell's  Law  of  Nations. 

Verplank  on  Contracts. 

Wentworth  on  Executors. 
Washington's  Virginia  Repo- ts. 

Yelvcrton's  Reports,  by  Metcalfe. 
Verger's  Tennessee  Reports,  6  vols. 

Law  Libraries  supplied  on  the  most  fa- 
vourable terms,  and  all  orders  thankfully 
received  and  promptly  attended  to. 

All  the  new  LAW  BOOKS  for  sale  as 
soon  as  published. 


BYRON'S  WORKi,  complete  in  1   vol.  8vo.,  including  all  his 

Suppressed  and  Attributed  Poems. 

Oj*  This  edition  has  been  carefully  compared  with  the  recent  London  edition  of  Mr. 
Murray,  and  made  complete  by  the  addition  of  more  than  fifty  pages  of  poems  hereto- 
fore unjiublished  in  England.  Among  these  there  are  a  number  that  have  never  ap- 
peared in  any  American  edition;  and  the  Publishers  believe  they  are  warranted  in  say- 
ing, that  this  is  the  7nost  complete  edition  of  Loi-d  Byroii's  Poetical  Works,  ever  pub- 
lished in  the  United  States. 

COWPER  AND    THOMSON'S    PROSE   AND   POETICAL 

WORKS,  complete  in  1  vol.  8vo.,  including  two  hundred  and  fifty  Letters,  and  sundry 
Poems  of  Cowper,  never  before  published  ia  this  country  ;  and  of  Thomson  a  new  and 
interesting  Memoir,  and  upwards  of  twenty  new  poems,  for  the  first  time  printed  from 
his  own  .Manuscripts,  taken  from  a  late  edition  of  the  Aldine  Poets,  now  publishing  in 
London. 

The  distinguished  Professor  SilJiman,  speaking  of  this  edition,  observes,  "lam  as 
much  gratified  by  the  elegance  and  fine  taste  of  your  edition,  as  by  the  noble  tribute  of 
genius  and  moral  excellence  which  these  delightful  authors  have  left  for  all  future  gene- 
rations ;  and  Cowper  especially,  i^  not  less  conspicuous  as  a  true  Christian  moralist  and 
teacher,  than  as  a  poet  of  great  power  and  exquisite  taste." 

GOLDSMITH'S   ANIMATED    NATURE,  in  4  vols.    8vo., 

illustrated  with  eighty-five  copperplates. 

"  Goldsmith  can  never  be  made  obsolete,  while  delicate  genius,  exquisite  feeling,  fine 
invention,  the  most  harmonious  metre,  and  the  happiest  diction  are  at  all  valued." 

This  is  a  work  that  should  be  in  the  Library  of  every  family,  being  written  by  one 
of  the  most  talented  authors  in  the  English  language. 


THE 


LAW    OF    EXECUTORS 


ADMINISTRATORS. 


By  Sir  SAMUEL  TOLLER,  Knight, 

LATE  ADVOCATE  GENERAL  AT  MADRAS. 


WITH  CONSIDERABLE  ADDITIONS, 

By  FRANCIS  WHITMARSH,  Esq. 

OF  ghat's  inn,  BAIIRISTEU  AT  LAW. 


Soi'te  suprema 

Permutat  Dominos,  et  cedit  in  altera  jura. — Hon. 


FOURTH  AMERICAN,  FROM  THE    LAST   LONDON   EDITION: 

WITH  IlEFIiUENCJiS  TO  THE  STATUTES  OF  PENNSYLVANIA,  AND  THE  PKINCIPAL 
AMERICAN  KECISIONS. 

BY  EDWARD  D.   INGRAHAM. 


PUBLISHED  BY  GRIGG  &  ELLIOTT, 

No. 'J  NORTH  roUKTH  STUEET. 

1834. 


Entered  according  to  the  Act  of  Congress,  in  the  year  1834,  by  John  Gkigg,  in 
the  Clerk's  Oftice  of  the  District  Court  of  the  Eastern  District  of  Pennsylvania. 


v6^' 


w^-/ 


IMIILADELI'UIA  .' 

K.  Collins  &.  Co.  Printer!- 
49,  Prune  Street. 


i 


ADVERTISEMENT 


SIXTH    LONDON    EDITION 


In  this  edition  of  "The  Law  of  Executors  and  Ad- 
ministrators," the  same  plan  has  been  pursued  as  in  the 
preceding  editions,  viz.  to  make  no  alteration  in  the  lan- 
guage of  the  original  work,  and  to  introduce  the  va- 
riation in  the  law  by  way  of  addition  or  explanation. 

Lincoln's  Inn,  May,  1827. 


PREFACE 


FIRST    LONDON    EDITION 


The  subject  of  the  following  treatise  comprehends  a  great 
variety  of  points,  in  which  the  public  are  very  generally 
interested.  In  the  ordinary  course  of  human  affairs,  almost 
all  persons  at  some  period  of  their  lives  are  called  to  exer- 
cise the  office  of  a  personal  representative,  or  to  transact 
business  with  such  as  are  invested  with  it.  An  attempt, 
therefore,  to  unfold  its  nature,  to  describe  its  rights,  and  to 
point  out  its  duties,  as  there  is  no  modern  work  of  any 
reputation  which  professes  exclusively  to  treat  of  these 
topics,  will,  I  persuade  myself,  be  regarded  with  favour. 

The  book  of  the  most  distinguished  nieriton  this  subject, 
is  that  which  is  entitled,  "  The  Office,  and  Duty  of  Execu- 
tors;" and  which,  although  it  bear  the  name  of  Thomas 
Wentworth,  is  now  generally  ascribed  to  Mr.  Justice  Dod- 
deridge.  It  was  first  published  anonymously  in  the  year 
1641:  to  the  third  edition,  printed  in  the  same  year,  was 
I)refixcd,  for  the  first  time,  the  fictitious  name  I  have  just 


Vi  PREFACE  TO  THE  FIRST  LONDON  EDITION. 

mentioned.  The  eighth  edition  appeared  in  1G89,  to  wliich 
Chief  Baron  Comyns,  in  his  Digest,  constantly  refers.  In 
1703,  the  ninth  edition  was  pubhshed,  with  a  supplement 
by  IT.  Curzon:  the  twelfth  edition  was  published  in  1762, 
with  references  by  a  Gentleman  of  the  Inner  Temple;  and 
in  1774,  the  thirteenth  and  last  edition,  by  Mr.  Serjeant 
Wilson. 

Of  the  original  work  it  is  no  undue  praise  to  assert,  that 
it  is  worthy  the  pen  of  so  learned  an  author.  It  is  calculated 
to  engage  the  attention  of  the  reader,  and  contains  very 
sound  principles,  and  authentic  information.  At  the  same 
time,  it  must  be  confessed  that  it  is  often  uncouth,  and 
sometimes  obscure  in  its  language,  altogether  inartificial 
in  its  method,  and  of  necessity  defective  in  regard  to  later 
adjudications ;  which  at  law  are  numerous  and  important, 
and  in  equity  constitute  a  new  system.  It  is  also  silent 
respecting  the  office  of  an  administrator.  Nor  is  it  much 
indebted  to  its  several  editors.  The  supplement,  as  it  is 
called,  is  a  mere  collection  of  cases,  without  order,  and 
without  precision. 

Under  these  circumstances  I  was  induced  to  compile  the 
present  treatise.  The  subject  appeared  to  me  capable  of 
an  arrangement  more  natural  and  distinct  than  any  w  hich 
has  hitherto  been  adopted.  Such  arrangement  I  have  en- 
deavoured to  form,  and  to  preserve.  It  has  also  been  my 
object  to  comprise  the  multifarious  matter  of  which  I  have 


PREFACE  TO  THE  FIRST  LONDON  EDITION.  VU 

been  treating,  within  as  narrow  limits  as  it  would  admit  j 
and  to  express  myself  at  once  with  brevity  and  with  clear- 
ness. The  authorities  I  have  stated  very  fully  in  the  margin, 
with  a  view  of  facilitating  farther  researches  into  points  of 
a  nature  so  interesting,  and  of  so  perpetual  a  recurrence. 
And  it  will  afford  me  much  satisfaction,  if  I  shall  have  con- 
tributed to  extend  so  useful  a  species  of  knowledge. 


TABLE  OF  CONTENTS. 


BOOK  I. 

Of  the  appointment  of  executors  and  administrators. 


CHAP.  I. 

Of  wills  and  codicils — who  may  make  them — who  not — how 
they  are  annulled — or  revoked — how  republished 


1 


CHAP.  II. 

Of  the  appointment  of  executors. 

Sect.  i.      Who  may  be  an  executor — who  not — how  may 

be  appointed  -  -  -  -     33 

Sect.  ii.     Of  an  executor  de  son  tort — how  a  party  be- 
comes so         -  -  -  -     39 
Sect.  iii.   Of  the  renunciation  or  acceptance  of  an  execu- 
torship           -                 -                -  -     43 
Sect.  iv.    Of  an  executor  before  the  probate  of  the  will      -     46 
Sect.  V.     Of    the   probate — jurisdiction   of    granting  the 

same — of  bona  notabilia  -  -     49 

Sect.  vi.    Of  the  probate  of  nuncupative  wills    -  -     59 

Sect.  vii.  Of  the  probate  of  the  wills  of  seamen  and  ma- 
rines -  -  -  -     60 
Sect.  viii.  Of  the  probate  under  special  circumstances         -     65 
Sect.  ix.    Of  caveats,  revocation  of  probates,  and  appeals  -     72 
Sect.  x.     The  effect  of  a  probate — loss  of  the  same — what 

is  evidence  of  probate — effect  of  its  revocation  -     75 
B 


TABLE  OF  CONTENTS. 


CHAP.    III. 


Of  the  cqipointment  of  administrators. 
Sect.  i.      Of  general  administrations — origin  thereof — who 

entitled — of  consanguinity  -  -     80 

Sect.  ii.     Of  the  analogy  of  administrations  to  probates     -     94 
Sect.  iii.    In  regard  to  the  acts  of  a  party  entitled  previous 

to  the  grant     -  -  -  -     95 

Sect.  iv.    Practice  in  regard  to  administrations  -     96 

Sect.  V.     Of  special  and  limited  administrations  -     98 

Sect.  vi.    Of  administrations  to  intestate  seamen  and  ma- 
rines *  -  -  -  -  101 
.Sect.  vii.  Of  administrations  in  case  of  the  death  of  the 

administrator,  or  of  the  executor,  intestate       -  114 
Sect.  viii.  How    administration   shall    be   granted — when 
void — when  voidable — of  repealing  the  same 
— how  a  repeal  affects  mesne  acts  -  -  1 1 9 


BOOK   II. 

Of  the  riojhts  and   interests  of  executors   and   adminis- 
trators. 

CHAP.  I. 

Of  the  general  nature  of  an  executor^ s  or  administrators 
interest — Distribution  of  the  subject  with  reference  to  the 
different  species  of  the  deceased's  property         -  -  133 

f 

CHAP.  II. 

Of  the  interest   of  an  executor  or  administrator  in  the 
chattels  real  and  personal. 
Sect.  i.      Of  his  interest  in  the  chattels  real       -  -  139 


TABLE  OP  CONTENTS.  XI 

Sect.  ii.     Of  his  interest  in -the  chattels  personal,  animate, 

vegetable  and  inanimate  -  -  146 


CHAP.  HI. 

Of  the  iyiterest  of  the  executor  or  administrator  in  such  of 
the  chattels  as  were  not  in  the  deceased' s  possession  at  the 
time  of  his  death. 

Sect.  i.      Of  his  interest  in  cAo^e^  in  action        -  -  157 

Sect.  ii.  Of  interests  vested  in  him  by  condition,  by  re- 
mainder, or  increase,  by  assignment,  by  limi- 
tation, and  by  election     -  -  -  164 


CHAP.  IV. 

Of  chattel  interests  which  do  not  vest  in  the  executor  or 
administrator. 

Sect,  i.  Of  chattels  real  which  go  to  the  heir;  and  also 
touching  money  considered  as  land,  and  land 
as  money         _  .  _  _  175 

Sect.  ii.     Of  chattels  personal  which  go  to  the  heir; — and 

herein  of  heir-looms        -  -  -  192 

Sect.  iii.    Of  chattels  which  go  in  succession      -  -  201 

Sect.  iv.  Of  chattels  which  go  to  a  devisee,  or  remainder- 
man;— and  herein  of  emblements,  and  heir- 
looms -  .  -  -  203 


CHAP.   V. 

Of  the  chattels  which  go  to  the  widow. 

Sect.  i.  Of  the  chattels  real  which  go  to  the  widow; — 
and  herein  also  of  such  chattels  real  as  belong 
to  the  surviving  husband  -  -  212 

Sect.  ii.  Of  the  chattels  personal  which  go  to  the  widow; 
— and  herein  of  such  personal  chattels  of  the 
wife  as  go  to  the  surviving  husband  -  216 

Sect.  iii.    Of  tbe  wife's  paraphernalia  -  -  229 


Ml  TABLE  OP  CONTENTS. 

CHAP.    VI. 

Of  the  interest  of  a  donee  mortis  causa    -  -  -  233 

CHAP.  VH. 

Hoiu  effects,  which  an  executor  takes  in  that  character,  may 
become  his  own     -  -  -  -  -  238 

CHAP.  VHI. 

Of  the  interest  of  an  adm,inistrator,  general  and  special — 
of  a  married  looman  executrix,  or  administratrix — of 
several  executors  or  administrators — of  the  executor  of 
an  executor — of  an  administrator  de  bonis  non — of  an 
executor  de  son  tort  -  -  -  -  241 


BOOK   III. 

Of  the  powers  and  duties  of  executors  and  administrators. 

CHAP.  I. 

Of  the  funeral — of  making  an  inventory — of  collecting  the 

effects. 

Sect  i.      Of  the  funeral     -  -  .  -  245 

Sect.  ii.     Of  the  making  of  an  inventory  by  the  executor 

or  administrator  _  _  .  247 

Sect.  iii.    Of  his  collecting  the  effects  -  -  254 


TABLE  OF  CONTENTS.  Xlll 


CHAP.   II. 

Of  his  payment  of  debts  in  their  legal  order. 

Sect.  i.  Of  debts  due  to  the  crown  by  record,  or  speci- 
al ty-^of  certain  debts  by  particular  statutes     -  258 

Sect.  ii.  Of  debts  of  record  in  general — of  judgments; — 
and  herein  of  decrees — of  statutes  and  recogni- 
zances— of  docquetting  judgments  -  262 

Sect.  iii.    Of  debts  by  specialty; — and  herein  of  rent — of 

debts  due  by  simple  contract  -  -  278 

Sect.  iv.  Of  a  creditor's  gaining  priority  by  legal  or  equit- 
able process — of  notice  to  an  executor  of  debts 
by  specialty  or  simple  contract  -  288 


CHAP.  III. 

Of  an  executor's  right  to  retain  a  debt  due  to  him  from  the 
testator — under  what  limitations      -  -  -  295 


CHAP.  IV. 

Of  the  payment  of  legacies. 

Sect.  i.  Legacy,  what — who  may  be  legatees — who  not 
— legacies  general  and  specific — lapsed  and 
vested  -  -  -  -  299 

Sect.  ii.  Of  the  executor's  assent  to  a  legacy — on  what 
principal  necessary — what  shall  amount  to  such 
assent — assent  express,  or  implied — absolute 
or  conditional — has  relation  to  the  testator's 
death — when  once  made,  irrevocable — when 
incapable  of  being  made  -  -  306 

Sect.  iii.  When  a  legacy  is  to  be  paid — to  whom — of  pay- 
ment in  the  case  of  infant  legatees — of  a  con- 
ditional payment  of- a  legacy — of  payment  of 
interest  on  legacies — of  such  payment  where 
the  legatees  are  infants — of  the  rate  of  interest 
payable  on  legacies  -  .  .  312 


MV  TABLE  OF  CONTENTS. 

Sect.  iv.    Of  the  ademption  of  a  legacy  -  -  329 

Sect.  V.     Of  Qpmulative  legacies        _  _  _  334 

Sect.  vi.  Of  a  legacy's  bein^  in  satisfaction  of  a  debt  -  336 
Sect.  vii.  Of  the  abatement  of  legacies — of  the  refunding 

of  legacies — of  the  residuum  -  -  339 

Sect.  viii.  Of  an  executor's  being  legatee; — and  herein  of 

his  assent  to  his  own  legacy  •  -  -  344 

Sect,  ix.    Of  the  testator's  appointing  his  debtor  executor 

— when  the  debt  shall  be  regarded  as  a  specific 

bequest  to  him — when  not  -  -  347 

Sect.  X.     Of  the  residue  undisposed  of*  by  the  will,  when 

it  shall  £0  to  the  executor — when  not  -  351 


CHAP.  V. 

Of  the  incompetency  of  an  infant  executor — of  the  acts  of 
an  executor  durante  minoritate — of  a  married  ivoman  exe- 
cutrix— of  co-executors — of  executor  of  executor — of  exe- 
cutor de  son  tort  -  -  -  -  356 


CHAP.  VI. 

Of  Distribution. 

Sect.  i.      Of  distribution  under  the  statute;  and  herein  of 

advancement  _  _  .  359 

Sect.  ii.     Of  distribution  by  the  custom  of  London  -  388 

Sect.  iii.    Of  distribution  by  the  custom  of  York — and  of 

Wales  -  .  .  -  400 


CHAP.  VH. 

Of  the  powers  and  duties  of  limited  administrators — of  joint 
administrators    -  -  -  -  -  404 


CHAP.  VHI. 

Of  assets  as  distinguished  into  real  and  personal,  legal  and 
equitable — of  marshalling  assets        _  _  -  409 


TABLE  OF  CONTENTS.  XV 

CHAP.  IX. 

Of  a  devastavit        -  .-  -  -  -  424 

CHAP.  X. 

Of  remedies  for  and  against  executors  and  administrators 
at  law,  and  in  equity,  SfC. 

Sect.  i.      Of  remedies  for  executors  and  administrators  at 

law  ...  -  431 

Sect.  ii.     Of  remedies  for  executors  and  administrators  in 

equity  _  _  _  -  454 

Sect.  iii.  Of  remedies  at  law  against  executors  and  admin- 
istrators -  -  _  458 

Sect.  iv.   Of  remedies  against  executors  and  administrators 

in  equity         _  _  _  -  479 

Sect.  V.     Of  remedies  against  executors  and  administrators 

in  the  ecclesiastical  court  -  -  489 


APPENDIX. 

Duty  on  probates  and  administrations  *       -  -  498 

Duty  on  legacies     -  -  -  -  -  505 


TABLE    OF    CASES    CITED. 


Abury  v.  Miller 
Abney  v.  Miller 
Abramv.  Cunningham 


19 

2-2.  27.  306 

120.127,128. 

347 

102 

347 

55 

114.  407 

358 

308.  320 

427 

222 


Abbott  V.  Abbott 
Abbott  V.  Massie 
Adams  v.  Savage 
Adams  v.  Buckland 
Adair  v.  Shaw- 
Adams  V.  Peirce 
Adye  v.  Feuilleteau 
Adams  v.  Cole 
All  Souls'  Coll.  V.  Codrington    2.  301 

Allen  V.  Dundas           76,  77.  128,  129 

Allison  V.  Dickenson  120 

Aliens  V.  Andrews  122 

Alexander  v.  Alexander  318,  319 

Aldrich  v.  Cooper  421 
Annandale,    Marchioness    of,    ex 

parte  190 

Angerstein  v.  Martin  324 

Ankerstein  v.  Clarke  •        241 

Andrews  v.  Brown  287 

Andrew*  v.  Partington  326,  327 

Andrew  v.  Clark  352 

Annand  v.  Honeywood  394,  395 

Ancaster,  Duke  of,  v.  Mayer  417 

Apreece  v.  Apreece  301 

Appleton  V.  Doily  452 

Aplyn  V.  Brewer,  484 

Ards  V.  Watkin  179 

Arnold  v.  Preston  300 

Arandell  v.  Trevill  434 
Ashburne  v.  M'Guire     172.  300,  301. 

303.  324.  330,  331.  334 

Astley  V.  Powis  269 

Ashton  V.  Ashton  301.  331 

Ashburnliam  v.  Thompson  480.  483 

Attorney-General  v.  Barnes  6 

V.  Vigor            .  21 

V.  Downing  22.  27 

V.  Baines  27 

c 


Attorney-Gen.  v.  Hooker  117.  352,  353 

V.  Milner  172 

V.  Parkin  303.  331 

V.  Harley  335 

V.  Beatson  328 

V.  Cockerell  328 

V.  Hudson  339 

V.  Robins  339,  340.  347 

Atcherly  v.  Vernon 
Atkins  V.  Hill 


25,  26 
49 

Atkinson,  adm.  V.  Baker  140.  178.  190. 

490 

Atkinson  v.  Lady  Barnard  99 

Atkins  V.  Hiccocks  171 

Atkinson  v.  Webb  337 

Atkyns  v.  Waterston  391 

Atkins  V.  Hill  464 

Atkinson  v.  Henshaw  496 

Audley  v.  Audley  182.  186 

Aubin  V.  Daly  200 

Auriol  V.  Thomas  287 

Avelyn  v.  Ward  301 

Ayliflfe  V.  Ayliffe  122 

B. 

Baillie  v.  Mitchell  2 

Baxter  v.  Dyer  19 

Banks  v.  Sutton  21 

Barnes  v.  Crowe  26,  27 

Baxter  and  Bale's  Case  128 

Baden  v.  Earl  of  Pembroke  142 

Baxter  v.  Burfield  151.  475 

Barker  v.  Parker  167 

Barlow  V.  Grant  171.327 

Barnes  v.  Allen  171 

Baker  v.  Baker  183 

Bates  V.  Dandy  223 

Barclay  v.  Marshall  253 

Bank  of  England  v.  Moffat  255 

Bank  of  England  v.  Morrice  281 

Barker  v.  Dumeres  290 

Barksdale  v.  Gilliat  328 

Baugh  V.  Reed  329 


.will 


TABLE  OF  CASES  CITED. 


Hadrirk  v.  Stephens  330 

HaiUcr  V.  Hayiifr  333 

Baillio  V,  IJuttrrfiold  335 

Hairet  v.  Becklord  337 

Ha<r\vi-ll  V.  Dry  313 

IJall  V.  Smilh  352.373 

Haylcy  v.  Powell  352 

Baliiii'Mlon  v.  (Greenwood  391 

Bald\nn  v.  Church  359 

Barnc's  Case  3C3 

Ball  V.  Oliver  401 
Bath,  Karl  of,  v.  Earl  of  Bradford  410 

Batson  v.  Lindegrcen  412.  414 

Barnficld  v.  Wyiulham  117 

i^artholomcw  v.  May  417 

{Bartholomew  v.  Meredith  173 

Barker  v.  Talcot  425 

Bagot  V.  Ouo-hton  419 

Baynham  v.  IMatthews  440 

Barwell  v.  Parker  455 

Barry  v.  Rush  464 

Balcheii  v.  Scott  486 

Bastard  v.  Stockwell  490 

Bagnall  v.  Stokes  494 

Bennet  v.  Lord  Tankerville  25 

Beckford  v.  Parnccott  26,  27 

Beaumont  v.  Perkins  57 

Bell  V.  Timiswood  90 

Benyon  v.  Maddison  171 

Beciv  V.  Rebow  197 

Beamond  v.  Long  201 

Bennet  v.  Davis  226 

Beard  v.  Beard  227 

Bearblock  v.  Read          .  267.  404 

Beachcroft  v.  Beachcroft  300 

Bennet  v.  Whitehead  306 

Beckford  v.  Tobin  323 

Bell  V.  Coleman  329 

Benyon  v.  Benyon  335 

Beeston  v.  Booth  339 

Berry  v.  Usher  350 

Bennet  v.  Batchelor  350.  352 

Beeton  v.  Darkin  3ft2 

Benson  v.  Bellasis  391.  393 

Benson  v.  Maude  325 
Benyon  v.  Collins            358.  429.  472 

Beckford  v.  Beckford  394 
Berwick  v.  Andrews        431.  434.  472 

Bettison  v.  Broomley  2 

Bennet  v.  Coker  440 

Belchier,  ea;7;cr/e  484 

Bindon's  Case  230 

Bilson  v.  Saunders  317.  323 

Billincrhurst  v.  Speerman  279.  459 

JJilliiigharst  V.  Walker  419 

I5ird  V.  Lockey  426 

Birch  V.  Wade  320 

Birch  V.  Baker  333 
Blackborough  v.  Davis        82.  84.  91. 
103.  120,  121, 122.  127.  129.  241. 


Blackboroufrh  v.  Davis  297.  382.  384, 
385.  494 
Blackburn  v.  Davis  124 

Hligh  V.  Karl  of  Darnley  144.  296.  420 
IHackburn  v.  Greaves  219 

Blois  V.  Countess  of  Hereford         222 
Blount  V.  Burrow  234 

Blaney  v.  Hendricks  287 

Blakeway  v.  Karl  of  Strafford         288 
JJlandivell  v.  Loverdell  290 

iUandy  v.  Wedmore  337 

Blois  V.  Blois  305 

Bluriden  v.  Barker  391.  398,  399 

Blinkhorn  v.  Feast  354.  361 

Blankhard  v.  Galdy  416 

Blue  V.  Marshall  429.  481 

Bowers  v.  Littlewood       22.  370.  374. 
382.  384 
Bollard  V.  Spencer     48.  439.  467,  468 
Bourne  v.  Dodson  134 

Bonafous  v.  Walker  437 

Body  V.  Hargrave  141 

Bolton  v.  Cannon  142 

Bolland  et  Ux.  Admx.  v.  Spencer   152 
Boycott  V.  Cotton  172 

Bowles  V.  Poore  176 

Bond  V.  Simmons  220.  417 

Bosvil  V.  Blander  223 

Boone's  Case  250 

Bonny  v.  Ridgard  256 

Bothomly  v.  Lord  Fairfax      276  .  278 
Bowker  v.  Hunter  361 

Bootle  v.  Blundell  417 

Boyntun  v.  Boyntun  422 

Booth  V.  Holt  440 

Boothsby  v.  Butler  467 

Brydges  v.  Dutchess  of  Chandos  1,  2. 
21,  22,  23.  25 
Broderick  v.  Broderick  2 

Brudenall  v.  Boughton  7.  15.  19 

Bridgham  v.  Frontee  12 

Brady  v.  Cubitt  •  15.  18 

Brocks  v.  Phillips  34 

Brandon  v.  Nesbitt  ib. 

Bristow  V.  Towers  ib. 

Broker  v.  Charter  41 

Briers  V.  Goddard  105.404 

Brightman  v.  Keighley  162 

Brown  v.  Farndell    171.  341.  386,  373 
Bradley  v.  Powell  172 

Brewin  v.  Brevvin  173.  327 

Bristol,  Countess  of,  v.  Hunger- 
ford  178.  284 
Bradish  v.  Gee  180 
Brooks  V.  Brooks  224 
Bragner  v.  Langmead  266.  468 
Broome  v.  Monck  281 
Brooking  v.  Jenners  292.  474 
Britton  v.  Balhurst  292,  293 
Bronsdon  V.  Winter                  301.331 


TABLE  OF  CASES  CITED. 


XIX 


Bridge  v.  Abbot 

304 

Brown  v.  Peck 

314.  329 

Brown  v.  Elton 

320.  466 

Bradshaw  v.  Bradshaw 

327 

Brown  v,  Allen 

339 

Brown  v.  Selwyn 

350 

Brydges  v.  Wotton 

347 

Briddle  v.  Briddle 

390 

Brasbridge  v.  Woodcroft 

361 

Bright  V.  Smith 

394 

Bridgman  v.  Dove 

417 

Brightman  v.  Knightly 

425 

Brown  v.  Litton 

428.481 

Brook  V.  Skinner 

455 

Braithwaite  v.  Cooksey 

475 

Bruere  v.  Pemberton 

418 

Brice  v.  Stokes 

485,  486 

Breedon  v.  Gill 

494 

Burtenshaw  v.  Gilbert 

13,  14 

Burston  v.  Ridley 

49 

Burn  V.  Cole 

71.387 

Budd  V.  Silver 

90 

Buckley  v.  Pirk                165 

279.  281 

Butler  v.  Duncomb 

172 

Burton  v.  Pierpoint 

226.  231 

Bunn  V.  Markham 

235 

Burnett  v.  Holden 

265 

Burting  v.  Stonard 

256 

Buccle  V.  Atleo                 2G9 

.  289.  454 

Buckland  v.  Brook 

281 

Burke  v.  Jones 

288 

Bull  v.  Kingston 

352 

Buffor  v.  Bradford 

304.  361 

Burgess  v.  Robinson 

314 

Butcher  v.  Butcher 

319 

Butler  V.  Butler 

325,  326 

Buckworth  v.  Buckworth 

326 

Butler,  ex  parte 

488 

Butler  V.  Richardson 

ib. 

Burroughs  v.  Elton 

ih. 

Byrchall  v.  Bradford 

480 

C. 

Carey  v.  Askew 

6,  325 

Caroon's  Case 

12.  24 

Campbell  v.  French 

15 

Carte  v.  Carte 

22.35 

Cave  V.  Holford 

25 

Canterbury,  Archb.  of,  v.  House      65. 
491.  495 
Canterbury,  Archbishop  of,  v.  Wills 

247.  491.  493.  495 
Carter  v.  Bletsoe  172 

Canning  v.  Hicks  185.  186 

Cave  V.  Cave  196 

Cappinv. 219 

Carr  v.  Taylor  223.  321 

Castleton,  Lord  v.  Lord  Fanshaw  313 
Catchside  v.  Ovington  253 

Careless  v.  Careless  300.  314 


35. 


Carteret  v.  Carteret  303.  331 

Caweth  v.  Phillips  349 

Carey  v.  Goodinge  350 

Carter  v.  Crawley  370.  373 

Caldicot  V.  Smith 
Campart  v.  Campart 
Car  V.  Car 
Carter  v.  Barnadiston 
Calcot,  ex  ]]arte 
Camden  v.  Turner 
Church  V.  Mundy 
Christopher  v.  Christopher 
Chetham  v.  Lord  Audley 
Chamberlain  v.  Chamberlain 
Chauncey  v.  Graydon 
Chandos,  Duke  of,  v.  Talbot  173. 
Chichester  v.  Bickerstatf 
Chester  v.  Painter 
Chamberlain  v.  Hewson 
Chambers  v.  Gold  win 
Chatteris  v.  Young 
Chaworth  v.  Hooper 
Chancey's  Case 
Cheney's  Case 
Chomley  v.  Chomley 
Chace  v.  Box 
Challis  V.  Casborn  412 

Chambers  v.  Harvest  ib. 

Chandler  v.  Taylor  425 

Charlton  v.  Lowe  426 

Chamberlain  v.  Williamson  436 

Chevalier  v.  Finnis  438 

Childs  V.  Monins  463 

Churchill  v.  Lady  Hobson  481 

Churchill  V.  Hopson  484 

Chambers  v.  Minchin  486 

Civil  v.  Rich  395 

Gierke  v.  Cartwright  8 

Clarke  v.  Berkley  21 

Clymer  v.  Litler  22 

Cloberie's  Case  171.  305 

Clarkson  v.  Bowyer  189 

Clelandv.  Cleland  222 

Clarke  V.Blake  300 

Clarke  v.  Sewell  337,  338 

Clifton  V.  Burt  339.411.420 

Cloyne,  Bp.  of,  v.  Young        352,  361 
Cleaver  v.  Spurling         391.  394.  398 


361 
382 
382 
357 
390 
417 
453 
463 
6 
18 
456 
139 
171 
305 
180 
312 
320 
325 
304 
326 

336,  337 
345 

390.  401 
396 


Clennel  v.  Lewthwaite 
Clerk  V.  Hopkins 
Clerk  V.  Withers 
Cleve  V.  Vere 
Gierke  v.  Gierke 
Coles  V.  Trecothick 
Cothay  v.  Sydenham 
Cook  V.  Oakley 
Cotter  V.  Layer 
Coke  V.  Bullock 
Coppin  V.  Fernyhough 


354 

355 

442.  447.  449 

442 

490 

2 

9 

18.  343 

9.  19.  25 

19.  21 

22.  27 


(Jockerill  v.  Kynaston  48. 152. 438, 439 


x\ 


TABLE  OF  CASES  CITED. 


Comber's  Case 

74 

114 

Colborne  v.  Wright 

102 

Copeman  v.  Gallant 

134 

Cooke  V.  Foiiiitaia 

158 

Cooke  V.  Jcnnor 

162 

Collins  V.  Mctcalf 

171. 

305 

Cowper  V.  Scott 

173 

Cotton  V.  lies 

187 

Cox  V.  Godsalve 

204 

Comely  v.  Comely 

231 

Cox  V.  Joseph 

281 

Cox's  Case 

415 

Cope  V.  Cope 

284.417 

419 

Cock  V.  Goodfellow 

297 

Cooper  V.  Thornton   311 

,315.317 

321 

Cockercll  v.  IJarker 

322 

Collis  V.  Blackburn 

326 

Cookson  V.  Ellison 

329 

Coleman  v.  Coleman 

331 

Coole  V,  Boyd 

334,  335, 

336 

Cordell  v.  Noden 

352 

Colesworth  v.  Brangwin 

361 

Cox  V.  Bellitha 

395 

399 

Constable  v.  Constable 

400, 

401 

Cooper  V.  Douglas 

427. 

418 

Colcbeck  v.  Peck 

442 

Coan  V.  Bowles 

446 

Coke  V.  Hodges 

447 

Cottle  V,  Aldrich 

473 

Cockshutt  V.  Pollard 

480 

Cook  V.  License 

494 

Crooke  v.  Watt 

94. 

373 

Crabtree  v.  Bramble 

180 

Crane  v.  Drake 

256 

Cray  v.  Rooke 

283 

Croft  V.  Pyke 

283 

296 

Creuze  v.  Hunter 

286 

287 

Craven  v.  Tickell 

287 

Crawford  v.  Trotter 

312 

Crickett  v.  Dolby     312. 

324, 325, 

326 

Crockat  v.  Crockat 

331 

Cranmer's  Case 

336, 

337 

C'rompton  v.  Sale 

ib. 

Cray  v.  Willis 

343 

Crosman's  Case 

347. 

349 

Crosman  v.  Reade 

349 

Cranley,  Lord,  v.  Hale 

102 

Crackelt  v.  Bethune 

481 

Cruchfield  v.  Scott 

439 

Curtis  V.  Vernon 

243 

367 

Currie  v.  Pye 

335 

.422 

CutlilM?rt  V.  Peacock 

336 

Cutterback  v.  Smith 

412 

D. 

Darley  V.  Darley  21.  25.  226.  230.  320 
Daniel  v.  Luker  52.  55 

Dabbs  V.  Chisman  124 

Dawson  v,  Killei  172.  305 

Davis  V.  Gibbs  179 


Davis  V.  Monkhouse 

Davis  V.  Gardiner 

Darston  v.  Earl  of  Orford 

Darrel  v.  Molesworth 

Dagley  v.  Tol ferry 

Davies  v.  Austen 

Dawson  v  Clark 

Davcrs  v.  Davers 

Davers  v.  Dewes 

Denhara  v.  Stephenson 

Devereux  v.  Bullock 

Devon,  Duke  of,  v.  Atkins 

Deering  v.  Torrington 

Dembyn  v.  Brown 

Defllis  V.  Goldschmidt 

Descrambes  v.  Tomkins 

Debezo  v.  Mann 

Dewdney,  ex  parte 

Dean  v.  Dalton 

Dean  v.  Lord  Delaware 

Deeks  v.  Strutt 

Doarne  v.  Grimp 

Dickenson  v.  Dickenson 

Disher  v.  Disher 

Dix  v.  Reed 

Dormer  v.  Thurland 

Doe  v.  Pott 

Doe  V.  Staple 

Douglas's,  Sir  Charles,  Case 

Doune  v.  Lewis 

Doe  V.  Potter 

Dorchester  v.  W^ebb 

Dorford  v.  Dorford 

Doyle  V.  Blake 

Drake  v.  Monday 

Druce  v.  Dennison 

Drury  v.  Smith 

Drinkwater  v.  Falconer 

Duncomb  v.  Walker 

Duncomb  v.  Walter 

Dulwich  College  v.  Johnson     48, 

Dubois  V.  Trant  121,  122 

Duppa  V.  Mayo 


292 

421 

289 

305 

314 

317 

352,  353 

352 

374 

49.  55 

57 

140.  240 

154 

216 

300 

325,  326 

329 

343 

350 

394 

489 

468 

14 

286 

346 

6 

15 

19 

387 

419 

433 

347.  470 

481 

484 

176 

222 

234 

33 

46 

437 

495 

124 

176 


406. 


200. 


232. 


434, 


Dudley,  Lord,  v.  Lord  Wrade  197.210 


Dupleix  V.  De  Roven 
Duffield  V.  Smith 
Duffield  V.  Elwes 
Dubost,  ex  parte 
Durant  v.  Prestwood 
Dupratt  V.  Testard 
Dubray  v.  Comb 
Dyer  v.  Kearsley 

E. 

Earl  V.  Wilson 
Eastwood  v.  Vinke 
Eaves  v.  Mocato 
Earl  v.  Brown 
Ecles  V.  Eno-land 


266 
329 
236 
229 
374. 385 
466 
467 
454 


300 
336,  337 
439 
442 
304 


Edwards  v.  Count,  of  Warwick  7. 180 


TABLE  OP  CASES  CITED. 


XXI 


J78.  380. 


Edwards  V.  Countess  of  Warwick   208 
Edwards  v.  Freeman        25.  341.  368. 

370.  373.  376,  377,  378 
Edwards  v.  Harben 
Eddowes  v.  Hopkins 
Edwards  v.  Graves 
Edwards  v.  Bethee 
Ellis  V.  Smith 
Elliot  V.  Collier      115 


Elliot  V.  Gurr 
Elme  V.  Da  Costa 
Ellis  V.  Giiavis 
Elwes  V.  Maw 
Elliot  V.  Merriman 
Ellison  V.  Airey 
Ellis  V.  Walker 
Elliot  V.  Davenport 


419 
38 
287 
412 
467 

2.  6.  15 
380.  389.  396. 

398.  401 
84 
131 
186 
197 
256 

300.  455 
301 
303 


EUibank,  Lady,  v.  Montolieu  320,  321 
Ellison  V.  Cookson  329 

El  well  V.  Quash  359 

Ellis,  ex  parte  488 

Emerson  v.  Boville  19 

Emerson  V.  Emerson  157. 159.433.436 
Ernes  V.  Hancock  172 

Embry  v.  Martin  ib. 

English,  ex  parte  452 

Errington  v.  Hirst  179 

Erby  v.  Erby  259,  260 

Erving  v.  Peters  431.  454 

Eubrin  V.  Manpesson  447 

Evans  v.  Trip  302 

Evelyn  v.  Evelyn  381.  384.  419 

Everlyu  v.  Chichester  436 

Eves  V.  Mocato  439 

Ewer  V.  Corbet  256 

Eyrev.  Countess  of  Shaftsbury  242. 407 


F. 

Farrington  v.  Knightly 

Fawtry  v.  Fawtry    84. 

Farr  v.  Newman 
Fawsey  v.  Edgar 
Farquhar  v.  Morris 
Fawkes  v.  Gray 
Farnham  v.  Phillips 
Fane  v.  Blance 
Fawkner  v.  Watts 
Parish  v.  Wilson 
Farr  v.  Newman 
Faith  V.  Dunbar 
Fearon,  ex  parte 
Fettiplace  v.  Georges 
Fell  v.  Lutwidge 
Fellowes  v.  Mitchell 
Ferrand  v.  Prentice 
Fereyes  v.  Robertson 
Fetherston  v.  Allybon 


30.  117.  306. 

352.  478.  490 

87.94.98.103. 

105 

134.  468 

173 

287 

313 

329 

394 

396. 398 

466 

467 

489 

2 

9.  11.84 

59 

307.  484 

481 

417 

438 


Fielden  v.  Fielden  454 

Fitzgerald  v.  Villiers  471 

Fisher  v.  Lane  477 

Fleice  v.  Southcot  37 

Fletcher  v.  Stone  284 

Flud  V.  Rumcey  350 

Flanders  v.  Clarke  363 

Fletcher  v.  Walker  427 

Forrester  v.  Pigou  2 

Fooler  v.  Cooke  42.  142 
Foxwist  v.  Tremaine  102;  355.  446 
Fonnereau  v.  Fonnereau  171.  305.  312 
Fowler  v.  Fowler             227.  336,  337 

Ford  V.  Fluming  331 

Foy  V.  Foy  335 

Fonnereau  v.  Poyntz  343 

Fox  V.  Fox  350 

Foster  v.  Munt  352 

Fowke  V.  Hunt  '  '  390 

Fouke  v.  Lewin  393.  395 

Ford  V.  Glanville  406 

Forrester  v.  Lord  Leigh  419.  421 

Foster  v.  Blagden  422 

Foster  v.  Jackson  446 

Forbes  v.  Ross  481 

Frederick  v.  Hook  46 

Freke  v.  Thomas  101.  386 

Fryer  v.  Gildridge  167.  296 

Freemoult  V.  Dedire  283.414 

Freeman  v.  Fairlie  347.  456 

Fretwell  v.  Stacy  347 

Frewdn  v.  Rolfe  363 

Franklin  v.  Frith  4^6,  427 

Frevin  v.  Paynton  436 

Frescobaldi  v,  Kinaston  471 

G. 

Garland,  ex  parte  165.  486 

Garret  v.  Evers  189 

Garforth  v.  Bradley  219 

Garth  v.  Ward  269 

Gage  V.  Acton  278 

Gawler  v.  Standerwick  313 

Gaynor  v.  Wood  336 

Garret  v.  Lister     *  344,  345 

Garon  v.  Trippit  380.  394 

Garrick  v.  Lord  Camden  386 

Garvey  v.  Herbert  300 

Gawler  v.  'Wade  411 
Galton  V.  Hancock  417.419,  420,421 

Gale  V.  Till  8 

General  v.  Tyndall  422 

Gearz  v.  Beaumont  429 
Gibson  v.  Lord  Montfort      25,  26,  27 

Gifford  V.  Goldsey  173 

Gillaume  v.  Adderley  301.  303 

Gillespie  v.  Alexander  335 

Gibson  v.  Kinven  318 

Gibson  v.  Bott  323,  324 

Giraud  v.  II anbury  352 


XXll 


TABLE  OF  CASES  CITED. 


(iibbs  V.  Rumsey  359 

(Jirlinijr  v.  l.ec  419 

Gittinsv.  Steele  417 

Giles  V.  Dyson  491 

(;i!])iii  V.  Lady  Soiitliampton  455 

(."il)Son  V.  Brook  4G8 

Gill  V.  Scrivens  470 

Gladding  v.  Ynpp  359 

Goodright  v.  Sales  7 

Gore  V.  Knight  9 

(ioodriglit  V,  (Jlazier  17 

(ioodtitlev.  Newman  18 

Goodtitle  v.  Meredith  96 

Gold  V.  Strode  55 

Goodfellow  V.  Burchett  1-12.  288.  426 

Goss  V.  Nelson  171,  179 

Gordon  v.  Raynes  172 

Goodright  v.  Sales  178 

Gomersall.v.  Aske  965 

Goldsworthy  v.  Southcott  965.  443 

Goldsmith  v.  Sydnor  975.  981 

Godfrey  v.  Newport  978 

Gordon  v.  Raines  305 

Goodwin  v.  Ramsden  394 

Goring  v.  Goring  425 

Goldthwayte  v.  Petrie  439 

Goodwin,  ex  parte  452 

Gould  V.  Fleetwood  456 

Goodwyn  v.  Goodwyn  491 

Griffin's  Case  2 

Greenhillv.  Greenhill  25 

Green  v.  Shipvvorth  57 

Green  v.  Proude  ib, 

Griffiths  V.  Hamilton       76.  359.  360, 

363 
Grandison,  Lord,  v.  Countess  of 

Dover  105.  194 
Grandison,  Lord,  v.  Countess  of 

Devon  124 

Greaves  v.  Powell  142 

Grantham  v.  Hawley  202.  205 

Grutc  V.  Locroft  215 

Griffith  V.  Wood  ib. 

Griffith  V.  Bennett  247 

Graham  v.  Londonderry  226.  228. 

230,  231.  422 

Greenside  v.  Benson       245.  491.  495 

Grosvenor  v.  Cook  287 

Greenwood  v.  Brudnish  292 

Green  v.  Pigot                 312.  324.  481 

Grove  v.  Banson  322 

Green  v.  Ekins  326 

Green  ex  parte  397 

Grace  v.  Earl  of  Salisbury  329 

Graydon  v.  Hicks  350 
Granville,   Lady,  v.   Duchess  of 

Beaufort  353,  354 

Griffith  v.  Rogers  353 

Green  v.  Green  417 

Growcock  v.  Smith  422 


439, 

440 

180 

395 

313 

3 

6 

17.91 

,22 

1[ 

>.  21 

22 

454 

39. 

342 

191, 

192 

191 

48 

G8 

109. 

447 

109 

103 

114 

159. 

161 

162 

172 

197. 

224 

Gregg's  Case 
Guidot  V.  Guidot 
Gudgeon  v.  Ramsden 

H. 

Haig  V.  Swiney 

Harris  v.  Bedford 

Harirs  v.  Ligledew 

Harwood  v.  Goodright 

Harkness  v.  Bailey 

Hawes  v.  Wyatt 

Harrison  v.  Beccles 

Harrison  v.  Rowley 

Harrison  v.  Michell 

Harrison  v.  Weldon 

Harris  v   Hanna 

Habergham  v.  Vincent 

Hatton  V.  IMascal 

Havers  v.  Havers 

Harrison  v.  All  Persons 

Hayton  v.  Wolfe 

Harecourt  v.  Wrenham 

Hall  V.  Huffam 

Hall  V.  Terry 

Harvey  v.  Harvey 

Hardwick,   Lord,   in   Lawton  v. 

Lau-ton  197 

Hay  V.  Palmer  208.  210 

Hastings,  Lord,  v.  Sir  A.  Douglas 

228.  230 
Hassell  v.  Tynte  236 

Harman  v.  Harman  269.  299 

Harding  v.  Edge  270.  289 

Hales  V.  Freeman  398 

Hall  V.  Bradford  157.  433 

Hall  V.  Hallet  425 

Hall  V.  Huffam  474 

Hambling  v.  Lister  330,  331 

Hambly  v.  Trott  460.  462 

Hancock  v.  Hancock  391.  394 

Handby  v.  Roberts  421 

Harcourt  v.  Wrenham  415 

Harden  v.  Parsons  428 

Harford  v.  Browning  '347 

Hargrave  v.  Rogers  466 

Hargthrope  v.  Milforth  '      472 

Harris  v.  Docura  481 

Harris  v.  Jones  440 

Harris  v.  Vandridge  433 

Harrison  v.  Bowden  442 

Harrison  v.  Naylor  305 

Harrison  v.  Buckle  312 

Hartop  V.  Whitmore  329 

Hartop  V.  Hartop  329 

Hartwell  v.  Chitters  415 

Harvey  v.  Harvey  326,  327 

Harwood's  Case  390.  393 

Haslewood  v.  Pope  417.  420 

Hathornthwaite  v.  Russel  483 

Hatton  v.  Hatton  490 


TABLE  OF  CASES  CITED. 


XXlll 


Kaughton  v.  Harrison 
Hawes  v.  Saunders 
Hawes  v.  Warner 
Hawkes  v.  Saunders 
Hawkins  v.  Day      281 
Hayes  v.  Mico 
Haywood  v.  Kinsey 
Headley  v.  Redhead 
Heapy  v.  Paris 
Hearle  v.  Greenbank 

Hearne  v.  Barber 
Heath  v.  Heath 
Heath  v.  Perry 
Hedges  v.  Hedges 
Helier  v.  Casbert 
Henslor's  Case 
Herbert  v.  Torball 
Herbert  v.  Herbert 
Herbert's  Case 
Heme  v.  Meyricke 
Heron  v.  Heron 
Hewitt  V,  Wright 
Hewitt  V.  Morris 
Heylyn  v.  Heylyn 
Heysham  v.  Heysham 
Heywood's  Case 
Hibben  v.  Calemberg 
Hickey  v.  Hayter 
Higgs  V.  Warry 
Highman,  ex  parte 
Hill  V.  Chapman 
Hill  V.  Hill 
Hill  V.  Mills 
Hill  V.  Turner 
Hilliard  v.  Cox 
Hillyard  v.  Taylor 


326 

438,439,440 

336,  337 

463,  464 

, 292. 322.  471 

337 

426 

340 

266. 468 

312.  324,  325. 

327 

394.  396 

417 

301.  324,  325 

232 

142 

74 

8.27 

9 

269 

420 

399 

180 

324 

26 

326 

358 

124 

267 

439 

320 

234 

326 

31,32 

490 

52 

422 


266 


Hinchinbrooke,  Lord,  v.  Seymour  173 


464. 


468 

253 

301,  302.  340 

17 


Hindsley  v.  Russel 
Hinton  v.  Parker 
Hinton  v.  Pinke 
Hitchins  v.  Basset \ 
Hitchon  v.  Bennett  416 
Hockley  v.  Bantock  481 
Hodges  V.  Beverley  228 
Hodges  V.  Cox  477 
Hodges  V.  W'oddington  340 
Hodgson  V.  Rawson  172 
Hodsden  v.  Lloyd  19 
Hoe  V.  Nathorpe  77 
Hog  V.  Lashley  57 
Hogan  V.  Jackson  '  22 
Holbird  v.  Anderson  288 
Holcomb  V.  Pettit  472 
Holditch  V.  Mist  322 
Holderness,  Countess  of,  v.  Mar- 
quis of  Carmarthen  178.  200 
Holland  v.  Hughes  318 
Hollingshead's  Case  442 
Hollinirsworth  v.  Ascue  276 


Hollis  V.  Smith 
HoUoway  v.  Collins 
Holloway  v.  Clarke 
Holt  V.  Frederick 
Holt  V.  Bishop  of  W^inchester 
Hone  V.  Medcraft 
Hoole  V.  Bell 
Hooley  v.  Hatton 
Hooper  v.  Summerset 
Horay  v.  Daniel 
Hornsby  v.  Hornsby 
Hornsby  v.  Finch 
Horsam  v.  Turget 
Horsley  v.  Chaloner 
Horton  v.  Wilson 
Hortop  V.  Hortop 
Hoskins  v.  Hoskins 
Hoste  V.  Pratt 
Hough  V.  Ryley 
Houghton  V.  Franklin 
House  V.  Ld.  Petre  44, 

Hovey  v.  Blakeman 
Howard  v.  Jemmet  134. 

Howe  V.  Earl  of  Dartmouth 
Howe  V.  Howe 
Howe  V.  Whitebanck 
Howell  V.  Barnes 
Howell  V.  Hanforth 
Howell  V.  Maine 
Howell  V.  Price  284. 

Howell  V.  Waldron 
Howse  V.  Webster 
Hubert  V.  Parsons 
Hudson  V.  Hudson    74. 


Hughes  V, 
Hughes  V 
Hulbert  v. 
Hulme  V. 


Hughes 
Doulben 
Hart 
Heygate 


114. 

407. 


Humberstone  v.  Stanton 
Humble  v.  Bill 
Hume  V.  Edwards  302, 

Humphreys  v.  Ingledon 
Humphreys  v.  Humphreys 
Hunt  V.  Hunt 
Huntingdon  v.  Huntingdon 
Huntley  v.  Griffiths 
Husband  v.  Pollard 
Hussey  v.  Berkeley 
Hutchens  v.  Fitzwatcr 
Hutcheson  v.  Hammond 
Hutchins  v.  Foy 
Hutchinson  v.  Savage 
Hutton  V.  Simpson 
Hyde  v.  Hyde 
Hyde  v.  Skinner 

I. 

Ilchestcr,  Earl  of,  ex  parte  18,  19 

Inchiquin,  Earl  of,  v.  French  304.417 


439 
314 
19 
380 
189 
22 
450 
334 
37 
471 
304 
352 
478 
483 
496 
329 
354 
326 
320 
324 
.  76.  118 
484 
463.  467 
318 
179 
169 
363 
210 
219 
417.  421 
490 
457 
172. 305 
241. 359 
446.  471 
368 
410 
180 
26 
304 
956 
339.  396 
46 
46.  302 
152 
2 
220 
161 
30O 
172 
303.  427 
171 
134 
27 
13.  17 
144 


XXIV 


TABLE   OF   CASES   CITED. 


Inolcdon  V.  Norlhcote 

4-22 

Ireland  v.  Coulter 

3G5 

Irod  V.  Hurst 

330 

Irvinn^  V.  Peters 

455 

Istcd  V.  Stanley- 

114.  117 

Ives  V.  Medcalf 

399 

Izon  V.  liutler 

304 

Jackson  v.  Hurlock 
Jackson  v.  Kelly 
Jackson  v.  Leaf 
Jacobs  V.  IMiniconi 
Jacomb  v.  Harwood 


241,  242. 
359 


James  v.  Dean 

Janson  v.  Bury 

Jaunccy  v.  Sealey 

Jeacock  v.  Falkener 

Jeffe  V.  Wood  33G 

Jeffereys  v.  Small 

Jefferies  v.  Harrison 

Jemmot  v.  Cooly 

Jenison  v.  Ld.  Lexington 

Jenkins  v.  Whitehouse 

Jenkins  v.  Plombe  152.  426,  427 

Jenkins  in  re 

Jenkins  v.  Plume  161,  162, 

Jenkins  v.  Powell 

Jennings  v.  Looks 

Jenks  V.  Halford 

Jenner  v.  Morgan 

Jennor  v.  Harper 

Jenour  v.  Jenour 

Jesson  V.  Essington 

Jevons  V.  Harridge 

Jevons  V.  Livemore 

Jewson  V.  Moulson  217 

Johns  V.  Rowe 

Johnson  v.  Lee 

Johnson's  Case 

Johnston  v.  Johnston 

Jolly  V.  Uower 

Jones  V.  Earl  of  Stafford 

Jones  V.  Goodchild 

Jones  V.  Waller 

Jones  V.  Jones 

Jones  V.  Selby 

Jones  V.  Westcomb 

Jones  V.  Wilson 

Joslin  V,  Brewit 

Joseph  V.  Mott 


21 
341 
455 
442 
256. 
,  407 
141 
374 

71 
337 
,  338 
155 
483 
179 
140 
9 
,436 
131 
438 
329 
172 
396 
208 
339 
343 
393 

12 

ib. 
.  490 

84 
496 
118 

19 
289 
101 
106 
129 
154 
234 
354 
439 
352 
289 


Keates  v.  Burton  319 

Kelsock  V.  Nicholson  360 

Kemp  V.  Andrews  155.  162 

Kendal  v.  Micfield  140 

Kendar  v.  Milward  182 

Kendrick  v.  Burges  243.  367 


Kennedy  v.  Stainsby  352 

Kenyon  v.  Worthington  455 

Ket  V.  Life  131 

Keylway  v.  Keylway  382 

King  V.  King  284.  417 

King  V.  Ayloffe  434 

King  V.  Stevenson  436,  437 

Kirkman  v.  Kirkman  391 

Knight  V.  Duplessis  102 

Knight  V.  Maclean  287 

Knight  V.  Knight  410 

Kniveton  v.  Latham  357 

Knot  V.  Barlow  357 

L. 

Lacam  v.  Mertins  419,  420,  421 

Lake  v.  Craddock  155 

Lake  v.  Lake  353, 354 

Lampenv.  Clowbery  171,  172 

Lamplugh  v.  Lamplugh  354 

Lancashire  v.  Lancashire  18 

Lancy  v.  Duke  of  Athol  420 

Lancy  v.  Fairchild  281 

Langham  v.  Sand  ford  352 

Langford  v.  Gascoigne  486 

Langston  v.  Ollifant  428 

Lassels  v.  Lord  Cornwallis  283 

Laundy  v.  Williams  313.  325 

Lawson  v.  Hudson  419 

Lawson  v.  Stitch  301.  323 
Lawson  v.  Lawson  232.  234,  235,  236 

Lawton  v.  Lawton  197.  210 
Leake  v.  Robinson 
Lechmere  v.  Earl  of  Carlisle 

189.  283. 
Lee  V.  Cox 
Leech  v.  Leech 
Leek,  ex  parte 
Lees  V.  Summersgill 
Le  Grice  v.  Finch 
Leigh  V.  Barry 
Leman  v.  Newnhapa 
Lemanv.  Tooke    ^-— ' 
Le  Mason  v.  Dixon 

Levet  V.  Lewkenor  447, 
Levet  V.  Needhara 


Lewin  v.  Lewin  302.  339, 

Lewis  V.  Lewis 

Lewis  V.  Mangle 

Lewin  v.  Okeley 

Ljmberg  v.  Mason  2.  1' 

Liramer  v.  Every 

Linofard  v.  Earl  of  Derby 


324 
180. 
415 
386 
327 
488 
300 
331 
484 
419 
281 
436 
449 
178 
391 
314 
119 
412 
'.  57 
118 
410 


Lingen  v.  Sowray  7.  180,  181 

Lister  v.  Lister  222 

Littleton's,  Sir  Thomas,  Case         185 
Littleton  v.  Hibbins       259,  260.  269. 

292 

Littlehales  v.  Gascoyne         426.  429. 

471,  472 


TABLE  OF  CASES  CITED. 


XXV 


Lloyd  V.  William  323 
Lloyd  V.  Tench                374.381.384 

Loame  v.  Casey  297 

Lockier  v.  Smith  349 

Lockyer  v.  Simpson  350 

Lockyer  v.  Savage  399 

LoefFs  V.  Lewin  283 

Logan  V.  Fairlie  328 

Lonquet  v.  Scavven  178 

Lonsdale,  Lord,  v.  Church  287 

Long  V.  Short  301.  340 
London,  City  of,  V.  Richmond        319 

Longmore  v.  Broom  ih. 

Lord  V.  Wormleighton  455 

Lowther  v.  Cavendish  314 

Lowther  v.  Condon  171,  172 

Lowndes  v.  Lowndes  326 

Lowson  V.  Copeland  426 

Lucy  V.  Levington  158.  431 

Lucas  v.  Lucas  226 

Luck's  Case  253 

Lugg  V.  Lugg  18 

Luke  V.  Alderne  312.  491 

Lumley  v.  May  304 

Lutwyche  v.  Lutwyche  381 

Lutkins  v.  Leigh  421 

Lyndall  v.  Dunlapp  279 

Lynn  v.  Beaver  355 

M. 

Macclesfield,  Earl  of,  v.  Davis        199 
Mackenzie  v.  Mackenzie         437.  467 

Maddox  v.  Staines  315 

Madox  v.  Jackson  410 

Maddison  v.  Andrews  319 

Maltby  v.  Russell  288 

Malcomb  v.  Martin  332.  328 

Manaton  v.  Manaton  410 

Mann  v.  Copeland  302 

Manning  v.  Napp  106 

Mann  V.  Bishop  of  Bristol  144 

Mannering  v.  Herbert  172 

Manning's  Case  355 

Manning  v.  Spooner  416.  419 

Martin  v.  Mowlin  187.  189 
Marlborough,  Duke  of,  v.   Lord 

Godolphin  9 

Marshall  v.  Frank  85 

Mario w  v.  Smith  134 

Martin  v.  Crump  155.  162 

Marshall  v.  Frank  179 

Martin  v.  Rebow  352,  353 

Marwood  v.  Turner  22.  25 

Martwick  v.  Taylor  57 

Marriot  v.  Marriot  65.  76 

Martin  v.  Martin  270 

Markland,  ex-  parte  488 

Mason  v.  Williams  270 

Massey  v.  Iludbou  301 

D 


Masters  V.  Masters  334,  335,  336.  339. 

420 

Mason  v.  Limberry  14 

Mason  v.  Dixon  159 

Mathews  v.  Mathews  337 

Mathews  v.  Warner  2.  74 

Mathews  v.  Weston  179 

Matthews  v.  Newby  389.  480.  489 

M' Williams,  matter  of  358 

Maw  V.  Harding  382 

Maxwell  v.  Wettenhall  323 

Mayott  V.  Mayott  301 

Maybank  v.  Brooks  303 

May  V.  Wood  171 

Mead  v.  Lord  Orrery  44.  256. 306. 307. 

311 

Meales  v.  Meales  321.  490 

Medcalfe  v.  Medcalfe  391.394 

Mellor  V.  Overton  288 

Mence  v.  Mence  14 

Mentney  v.  Petty  88 

Merchant  v.  Driver  428 

Methuen  v.  Methuen  17 

Middleton  v.  Dodswell  489 

Middleton  v.  Spicer  353 

Miles's  Case  224 

Miller  v.  Miller  3 

Mildmay's,  Sir  Henry,  Case  466 
Milner  v.  Lord  Harewood        140.  409 

Miller  v.  Miller  232.  234.  236 

Miller  v.  Warren  304 

Milner  V.  Coleman  320 

Minnel  v.  Sarazine  336 

Mitchinson  v.  Hewson  219 

M'Leod  v.  Drummond  256 

Mogg  V.  Hodges  420.  422 

Monkhouse  v.  Holme  171 

Moore  v.  Godfrey  313 

Moore  v.  Moore  17 

Moore  v.  Moore  242 

Mordaunt  v.  Hussey  352 

Moreton's  Case  157.  433 

Morrice  v.  Bank  of  England  269, 
270.  289 

Morris  v.  Burroughs  391.  396.  399 

Morrison  v.  Turner  2 

Morley  v.  Ward  481 

Morgan  v.  Greene  257 

Morgan  v.  Harris  496 

Mortlock  V,  Loathes  480 

Morton  V.Hopkins  433 

Motam  V.  Motam  320 

Mountford  v.  Gibson  257 

Munday  v.  Earl  Howe  326 

Munt  v.  Stokes  152.  436 

Murray  v.  Jones  70 

Murrel  v.  Cox  484 

Musson  V.  May  297 

Myddleton  v.  Rushoul  219 


XXVI 


TABLE   OF   CASES   CITED. 


N. 
Nanney  v.  Martin 
Napier,  Charles  James,  in  re 
Neale  v.  Willis 
Neeve  v.  Hccke 
Nelthorj)  v.  Hill 
Netter  v.  Bret 
Newport  v.  Godfrey 
Newman  v.  Barton 
Newman  v.  Hodgson 
Newstead  v.  Johnston 
Newton  v.  Bennet  412.  414. 


340, 

342, 

428. 


32G. 


4(37, 


Nicholas  v.  Kelligrew 

Nicholas  v.  Nicholas 

Nichols  V.  Osborne 

Nicholls  V.  Judson 

Nicholls  V.  Crisp 

Nisbelt  V.  Murray 

Noel  V.  Nelson 

Noel  V.  Robinson    308.  321,  322. 

Norden  v.  Levit 

Norgate  v.  Snape 

Norton  v.  Turville 

Norwich,  Mayor  of,  v.  Johnson  39. 

Northey  v.  Northey 

Northey  v.  Strange  300.  305  389, 

Northey  v.  Burbaore 
Northumberland,  Earl  of,  v.  Mar- 
quis of  (Jranby 
North,  Lord,  v.  Purdon 
Nourse  v.  Finch 
Noys  V.  Mordant 
Nugent  V.  Gilford 


223 

73 
171 
172 
341 

G8 
278 
311 

55 
343 
480. 
483 

48 
490 
354 
337 
352 
319 
470 
340. 
416 
425 
447 
486 
.473 
230 
390 
396 
304 

314 
352 
354 

187 
256 


O. 

Offley  V.  Best    71.  121,  122.  125.  127 
Offley  V.  Offley  230.  245 

Oke  V.  Heath  1,  2.  304 

Oldfield  V.  Oldfield  172 

Onions  v.  Tyrer  0.  13,  14,  15.  17 

Oneal  v.  Meade  421 

Openheimer  v.  Levy  34 

Orr  V.  Kains  340 

Orr  V.  Newton  364 

Owen  V.  Curzon  457 

Oxenden  v.  Lord  Compton  190 


Packer  V.  Wyndham  222,223 

Paddy,  ex  parte  in  re  Drakely  452 

Padget  V.  Priest  38.  41 

Page  V,  Leapingwell  340 

Page  V.  Pager  343 

Paget  V.  Gee  208 

Paset  V.  Hoskins  256 


Paine  v.  Teap 

Palgrave  v.  Windham 

Palmer  v.  Trevor 

Palmer  v.  Dawson 

Palmer  v.  Garrard 

Palmer  v.  AUicock 

Pannel  v.  Taylor 

Papworth  v.  Moore 

Parsons  v.  Dunne 

Parsons  v.  Freeman 

Parsons  v.  Freeman 

Parker  v.  BiScoe 

Parker  v.  Kitt 

Parker  v.  Atfield 

Parker  v.  Dee 

Parker  v.  Amys 

Parker  v.  Masters 

Parrot  v.  Worsfield 

Partridge  v.  Partridge 

Partridge's  Case 

Patten,  executrix,  v.  Panton 

Pawlet's,  Lord,  Case 

Peach  V.  Phillips 

Peacock  v.  Monk 

Peanlie's  Case 

Pearce  v.  Chamberlain 

Pearce  v.  Taylor 

Pearley  v.  Smith 

Pearson  v.  Garnet 

Pearson  v.  Henry 

Pease  v.  Mead 

Peck  V.  Parrot 

Penticost  v.  Ley 

Peploe  V.  Swinburn 

Percival  v.  Crispe 

Perrot  v.  Austin 

Perkins  v.  Baynton 

Perkins  v.  Micklethwaitc 

Perkins  v.  Thornton 

Perkes  v.  Perkes 

Petre,  Lord,  v.  Heneage 

Petrie  v.  Hannay 

Pett  v.  Pett 

Pett's  Case 

Pett  V.  Inhab.  of  Whigfield 

Pettifer  v.  James 

Petit  v.  Smith  247,  360,  361 

Pheasant  v.  Pheasant 

Phillips  V.  Phillips 

Phipps  v.  Pitcher 

Phipps  v.  Earl  of  Anglesea 

Phillips  V.  Bignell 

Phillips  V.  Echard 

Phillips  V.  Paget 

Phiney  v.  Phiney 

Phipps  V.  Steward 

Pickering  v.  Towers 

Pierson  v.  Garnet 


158. 
224. 


11 

434 

320 

288 

374 

386 

489 

313 

320 

19.21 

419 

21 

243.  364 

266 

288, 289 

293 

293 

302 

302.  333 

68 

46 

171.  330 

19 

227.  239 

94 

165.  167 

422 

210 

322 

463,  464 

.  168 

169 

302 

269.  289 

389 

284 

426.480 

304 

223 

14 

196 

431 

382 

3.  82.  373 

475 

393 

370. 490 

220 

140.  417 

2 

17 

249 

270 

314,  315.  317 

377,  378 

496 

35 

328 


Pitrot  and  Gascoigne's  Case 


102 


TABLE  OF  CASES  CITED. 


XXVll 


Pilkington  v.  Peach  12 

Pinbury  v.  Elkin  169 

Pipon  V.  Pipon  387 

Pitfield's  Case  172 

Pitt  V.  Hunt  217 

Pitt  V.  Lord  Camelford  301 

Pitts  V.Evans  490 

Plume  V.  Beale  70 
Plumer  v.  Marchant        278.  283.  296, 

297 

Plunket  V.  Penson  414,  415 

Pockley  v.  Pockley       ■  417.  419 

Pollard  V.  Gerrard            '  496 

Poole's  Case  196 

Pope  V.  Whitcombe  300 
Portland,  Countess  of,  v.  Progers     11 

Portman  v.  Cane  438 

Potts  V.  Layton  455 

Potter  V.  Potter  26,  27 

Potinger  v.  Wightman  387 

Pott  V.  Fellows  320 

Pouletv.  Poulet  172 

Powley  and  Sear's  Case  60 

Powell  V.  Coleaver  329 

Powell  v.  Hankey  227 

Powell  V.  Killick  452 

Pratt  V.  Stocke  125 
Pratt  V.  Sladden                    •   352,  353 

Prattle  v.  King  141 

Price  V.  Packhurst  446 

Price  V.  Simpson  403 

Price  V.  Vaughan  486 

Pring  V.  Pring  300 

Prowse  V.  Abingdon  172.  422 

Proud  V.  Turner  378 

Probert  v.  Clifford  423 

PuUen  V.  Serjeant  305 
Pulkney  v.  Earl  of  Darlington         180 

Purse  v.  Snaplin  301,  302 

Pusey  V.  Pusey  190 

Pusey  V.  Desbouverie  391 

Pynchyn  v.  Harris  139 

Pyne  v.  WooUand  243.  367 


Quick  V.  Staines 
Quincy,  ex  parte 


Q. 


134,  135 
197 


R. 


-Rachfield  v.  Careless      118.  350.  352. 

354 
Raine's,  Sir  Richard,  Case  65 

Raine  v.  Coniiu.  of  JJioc.  ol'  Cau- 

terb.  74 

Randall  v.  Bookey  352 

Ranking  v.  Barnard  <  338 

\l<\\\i\  V.  Hughes  46:J 

Kapliail  V.  Bochm  4H1 


Rashleigh  v.  Master 

Rashley  v.  Masters 

Ratcliff  V.  Graves 

Ravenscroft  v.  Ravenscroft 

Raven  v.  White 

Rawlins  v.  Burgis 

Rawlins  v.  Powel 

Rawliuson  v.  Shaw 

Ray  v.  Ray 

Read  v.  Phillips 

Read  v.  Litchfield 

Read  v.  Truelove 

Redshaw  v.  Brasier 

Reech  v.  Kinnegal 

Reed  v.  Desvaynes 

Reeves  v.  Freeling 

Regina  v.  Rogers 

Rex  V.  Bettesworth 

Rex  V.  Raines        31.  41 

Rex  V.  Simpson 

Rex  V.  Hay 

Rex  V.  Netherseal 

Rex  V.  Vincent 

Rex  V.  Rhodes 

Rex  V.  Inhab.  of  Horsley 

Rex  V.  Willet 

Rex  V.  Inhab.  of  Stone 

Rex  V.  Stockland 

Rex  V.  Withers 

Rex  V.  Hilton 

Rex  V.  Peck 

Rex  V.  Pett 

Richards  v.  Mumford 

Richardson  v.  Disborow 

Richardson  v.  Greese 

Richfield  v.  Udall 

Richmond  v.  Butcher 

Rid  out  v.  Lewis 

Rider  v.  Wager        25.  304. 

Ridges  v.  Morrison 

Ridler  v.  Punter 

Ridout  V.  Earl  of  Plymouth 

Rigden  v.  Vallier 

Rightston  v.  Overton 

Ripley  v.  Waterworth 

Rivers,  Earl,  v.  Earl  Derby 

Ross  V.  Ewer 

Rowley  v.  Eyton 

Robinson  v.  Pett 

Rose  V.  Bartlett 

Robin's  Case 

Rockingham,  Lord,  v.  Oxenden 

Roper  V.  Radclille 

Rook  V.  Warlh 

Rolfc  V.  Budder 

Rogers  V.  Dan  vers 

RobiuKon  v.  Gee      283. 

Itobinson  v.  Bland 


208 

483 

159 

lai 

326 

23 

337 

297.  466 

135 

2 

417 

484 

388 

336.  463.  493 

347 

249 

389, 390.  394 

9.  71.  85.  105 

.  65.  370.  490 

44 

65 

74 

76 

76 

87 

141 

145 

157 

172 

358 

457 

ib. 

14 

494 

172.  336 

34 

176 

227 

307.  331. 

338.  421 

334,  335 

135 

230 

57 

185 

3 

173 

9 

26 

44.  455,  450 

106 

120 

176 

199 

201 

226 

283 

419 

287 


276, 
417, 


XXVlll 


TABLE  OF   CASES   CITED. 


Robinson  V.  Tonge  409.411. 

Rose  V.  Rose 
Roden  v.  Smith 
Rotherani  v.  Fanshaw 
Rowiiey  v.  Dean 
Rogers  v.  James 

Rocive  V.  Hart  481. 

Rous  V.  Noble 
Rndstone  v.  Anderson 
Rutland  v.  Rutland 
Rutland,  Duke  of,  v.  Dutchess  of 
Rutland  354. 

Rutland,  Countess  of,  v.  Rutland 


Rutler  V.  Rutler 
Russel'^  Case 
Rush  V.  Higgs 
Rye  V.  Fuljambe 


357, 


421 
304 
31-2 
317 

438 
453 
483 
481 
22 
133 

382 
431. 
433 
390 
433 
455 
320 


S. 

Sand's  Case 

Sadler  v.  Daniel 

Sacheveral  v.  Frogate 

Salwey  v.  Salwey 

Sawyer  v.  Mercer 

Sayer  v.  Sayer  301, 

Saunders  v.  Drake 

Saville  v.  Blacket 

Samwell  v.  Wake 

Sagittary  v.  Hyde 

Sausmerez,  ex  parte 

Sadler  v.  Hobbs 

Scott  V.  Rhodes 

Scudaniore  v  Hearne 

Scattergood  v.  Harrison 

Scott  V.  Stephenson 

Scurfield  v.  Howes 

Semine  v.  Howes 

Searle  v.  Law 

Searle  v.  Lane  263. 

Seton  V.  Lane 

Serle  v.  St.  Eloy 

Seaman  v.  Everald 

Seers  v.  Hind 

Shaw  V.  Cutteris 

Sheath  v.  York 

Shaw  V.  Stoughton 

Shergold  v.  Stoughton 

Shepherd  v.  Shorthose 

Shore  v.  Porter 

Shore,  Lady,  v.  Billingsby 

Sherman  v.  Collins 

Sherrard  v.  Collins 

Shaugley  v.  Harvey 

Shilleg's  Case 

Shafts  V.  Powel 

Sharp  V.  Fiarl  of  Srarhro' 

Shirt  V.  Wcstby 


122.  124 

124.491 

176.  179 

222 

293 

302.  339 

322 

330 

417 

420 

452 

484 

57 

281.  292 

455,  456 

403 

484 

229 

263 

266.  269 

317 

417 

425 

483 

12 

19 

50 

57 

77 

140 

154 

172 

210 

232 

245 

269 

287 

324 


Shepherd  v.  Ingram  326 

Shudall  V.  Jekyll  329 

Shiphard  v.  Lutwidge  414 

Shuttlcworth  v.  Garnet  436 

Shipbrook,  Lord,  v.  Lord  Hinchin- 


brook 
Shakeshaft,  ex  parte 
Shatter  v.  Friend 
Silberschild  v.  Schiott 
Sibley  V.  Cooke 
Sibthorp  v.  Moxam 
Sikes  V.  Snaith 
Simmons  v.  Gutteridge 
Skinner  v.  Sweet 
Slaughter  v.  May 
Slanning  v.  Style 
Sleech  v.  Thorington 


102 


Slingsley  v.  Lambert 
Smell  V.  Dee  171.  305 

Smith's  Case 
Smith  V.  Milles 
Smith  V.  Barrow 
Smith  V.  Tracey 
Smith  V.  Smith 
Smith  V.  Gould 
Smith  V.  Partridge 
Smith  V.  Haskins 
Smith  V.  Harman 
Smith  V.  Eyles 
Smith  V.  Campbell 
Smith  V.  Fitzgerald 
Smith  V.  Norfolk 
Smithley  v.  Chomely 
Snape  v.  Norgate 
Snelling  v.  Norton 
Snelson  v.  Corbet 
Soan  v.  Bowden  and  Eyles 
Solley  V.  Gower 
Sorrell  v.  Carpenter 
Southby  V.  Stonehouse 
South  V.  Watson 


485,  486 
488 
494 
189 
304 

304.  307 
2 
349 
424 
404 
481 
323. 
340 
437 

312.  324 

105 

45.  74 

48.  162.  439 

91.  137 

172. 


103 

227 

301,  302. 


471 
151 
172 

270. 289 
283.  443 


300. 


290 
386 
303 
436 

40 

447 

281 

230,  231.  422 

286 

288 

209 

9 

18.  352,  353 


329. 


Southampton,  Mayor  of,  v.  Graves  466 

Southouse  V.  Bate  353 

Sparrow  v.  Hardcastle  21,  22 

Sparks  V.  Crofts  406,407 

Spencer's  Case  390 

Spinks  V.  Robins 

Sprange  v.  Stone 

Spurstow  V.  Prince 

Squib  V.  Wyn 

Squier  v.  Mayer 

Stackpoole  v.  Howell 

Stafford,  Earl,  v.  Buckley 

Stanley  v.  Stanley 

Stanley  v.  Potter 

Stanton  v.  Polatt 

Staplcton  V.  (-heales 

Staplelon  v.  Chcele 


337 

18 

434 

372 

197 

347 

200 

382 

331 

394 

171,  172 

171.  305 


158, 
115 


178 
91 


TABLE  OP  CASeS  OITED. 


XXIX 


St.  Alban's,  Duke  of,  v.  Beauclerk  335 

Startup  V.  Dodderidge  494 

Stasby  v.  Powell  270 

Steadman  v.  Palling  171 

Steel  V.  Roke  269 

Stephens  v.  Totty  320 

Stent  V.  Robinson  ■  326 

Stirling  v.  Lidiard  22 

St.  John,  Lord,  v.  Brandring  433 

St.  John's,  Lord,  Case  134 

St.  Legar  v.  Adams  77 

Stockdale  v.  Bushby  300 

Stodden  v.  Harvey  255 

Stokes  V.  Porter  38 

Stone  V.  Forsyth  9 

Stonehouse  v.  Ilford  278 

Stonehouse  v.  Evelyn  2.  323 
Strathmore,  Countess  of,  v.  Bowes  26. 

217 

Strata,  Case  of  Abbot  of,  ib. 

Strange  v.  Harris  481 

Stukely  v.  Butler  190 

Sudgrove  v.  Bailey  234 

Sutton  V.  Sharp  483 

Sutton  V.  Sutton  14 

Swallow  V.  Emberson  444.  471 

Sweetland  v.  Squire  286 

Swift  V.  Gregson  319 

Swift  V.  Roberts  1.  21,  22.  28 

Sympson  v.  Hornsby  27 

Syms  V.  Syms  129 

Syms's  Case  155 


Talbot  V.  Duke  of  Shrewsbury 

Tankerville,  Earl  of,  v.  Fawcet 
Tappenden  v.  Walsh 
Targus  v.  Puget 
Tasker  v.  Burr 
Tate  v.  Hibbert 
Tate  V.  Austen 
Tattersall  v.  Howell 
Taylor  v.  Acres 
Taylor  v.  Allen 
Taylor  v.  Shore 
Tebbs  v.  Carpenter 
Terrewest  v.  Featherby 
Teynham,  Lord,  v.  Webb 
Thellusson  v.  Woodford 
Thomas  v.  Davies 
Thomas  v.  Butler 

Thomas  v.  Kemish 
Thomas  v.  Bennett 
Thomas  v.  Thomas 
Thomas  v.  Kettcriche 
Thomson  v.  Butler 


336, 

337 

419 

11 

172 

141 

234,  235,  236 

339 

314 

386 

358 

99.  124 

426 

455 

173 

330.  373 

55 

82.  98.  105.  117 

125.  127.129 

182 

227.  337 

319 

385 

99.  121 


Thomson  v.  Dowe  173 
Thompson  v.  Stanhope  454 
Thorald  v.  Thorald  57 
Thornard,  Earl  of,  v.  Earl  of  Suf- 
folk 331.  339 
Thome  v.  Watkins  387 
Thornborough  v.  Baker  187 
Thrustout  v.  Coppin  91.  241 
Thynn  v.  Thynn  295 
Tidwell  V.  Ariel  303 
Tiffin  V.  Tiffin  •  396 
Tilney  v.  Norris  456 
Tipping  V.  Tipping  230,  231.  421,  422 
Tissen  v.  Tissen  326 
Tomkyns  v.  Ladbroke  391.  395 
Tomlinson  v.  Dighton  414 
Tomlinson  v.  Ladbroke  421 
Toplis  v.  Baker  304 
Toulson  V.  Grout  321 
Tourton  v.  Flower  94.  108 
Tourney  v.  Tourney  172 
Townshend,  Lord,  v.  Windham  227. 
231.422 
Tower  v.  Lord  Rous  417 
Trevelyan  v.  Trevelyan  14 
Tredway  v.  Fotherly  186 
Tredway  v.  Bourn  321 
Treviban  v.  Lawrence  429 
Trevinian  v.  Howell  463 
Trimmer  v.  Bayne  421 
Trower  v.  Butts  300 
Tucker  v.  Thurston  21 
Tudor  V.  Samayne  217 
Tuffnall  V.  Page  '  6 
Tulk  V.  Houlditch  306 
Tunstal  v.  Bracken  172.  305 
Turner  v.  Davies  131 
Turner  v.  Crane  187 
Turner  v.  Turner  258.  480 
Turner  v.  Jennings  389 
Turner's  Case  185 
Turner's,  Sir  Edward,  Case  217 
Twaites  v.  Smith  56 
Tweedle  v.  Coverley  417 
Tweddle  v.  Tweddle  419 
Tynt  v.  Tynt  230,  231 
Tyrrell  v.  Tyrrell             324,  325,  326 


U. 

Underwood  v.  Stephens  485 

Upton  v.  Prince  318 

Urquhart  v.  King  352 

Ulterson  v.  Utterson  28 


V. 
Vaa  V.Clark  171,172 

Vanthicuson  v.  Vanthieuson  118 


XXX 


TABLE  OF  CASES  CITED. 


Vaux  V.  Ilenclerson 
Vawson  v.  .Teft'ery 
Vernon  v.  Vernon 
Vernon  v.  Beth  el  I 
Viofrass  v.  Binfield 
Villiers  v.  Villiers 
Villa  V.  Dimock 


304 

21 

280 

314 

408 

7 

34 


W. 

Wadsworth  v.  Gye  475 

Wainvvright  v.  Bendlowes  417 

Walcot  V.  Hall  171 

Walker  v.  Woollaston       31.  98,  102. 
105.  257.  403,  404.  40G. 447 
Walker  v.  Wiffer  266 

Walker  v.  Smallwood  269 

Walker  v.  Shore  -326 

Walker  v.  Meager  414 

Walker  v.  Jackson  417 

Walker  v.  Walker  2 

Wall  V.  Buchby  483.  486 

Wall  V.  Thurborne  319 

Wallace  v.  Pomfret  337 

Wallis  V.  Hodgson  373 

Wallis  V.  Bright  322 

Wallop  V.  Irwin  443 

Walrond  v.  Fransham  438 

Walsh  V.  Walsh     _  374 

Walsam  v.  Skinner  3 

Walter  v.  Hodge  232 

Walton  V.  Walton  354.  376 

Wankford  v.  Wankford  42.  44,  45.  48. 
91.  95,  114,  115.  241.  297.  347. 
349.  357.  434.  437 
W^arde  v.  Warde  6 

Ward  V.  Moore  21 

Ward  V.  Turner  234,  235,  236 

Ward  V.  Lord  Dudley  and  Ward    419 
Ward  V.  Lant  329.  378 

Waring  v.  Ward  328 

Waring  v.  Danvers         183.  288,  289. 
290.  297 
Warr  v.  Warr  173 

Warren  v.  Statwell  410 

Warwick  v.  Greville  90 

Wate  V.  Briggs  437 

Watford  v.  Masham  34 

Watkins  v.  Cheek  173 

Watson  V.  Earl  of  Lincoln  329 

Watt  V.  Watt  84 

Webb  V.  Webb  340.  390 

Webb  V.  Jones  417 

Webster  v.  Vv'ebster  343 

Wells  V.  Fydell  472 

Wells  V.  Williams  12. 31.  34 

West  V.  Skip  454 

Westbeech  v.  Kennedy  2 

Westfaling  v.  Westfalinsr  409 


Weston  V.  Poole 
Weston  V.  James 
Westcot  V.  Gottle 
Westley  v.  Clarke 
Wetherby  v.  Dixon 
Whale  V.  Booth 
Wheeler  v.  Sheer  • 
Wheatley  v.  Lane 


440 

2G5.  442, 443 

470 

484 

329 

134.  256 

350.  352 

428 


Whitchurch  v.  Whitcliurch  6 

Whitchurch  v.  Baynton  284 

White  V.  Driver  8 

White  V.  Barford  18 

White  V.  Evans  360 

White  V.  Williams  "  352 

Whitehall  v.  Squire  154.  472 

Whithill  V.  Phelps  391 

Whitman  v.  Wild  173.  375 

Whytmore  v.  Porter  367 

Widdowson  v.  Duck  480 

Wightman  v.  Townroe  and  others  474 
Wilcocks  V.  Wilcocks  386.  393 

Wilford,  Chamberlain  of  London    201 
Wilkinson  v.  Miles  390 

Wilks  V.  Steward  428 

Willand  v.  Fenn  407 

Willats  V.  Cay  320 

Williams  v.  Owen  25 

Williams  v.  Crey  158 

Williams  v.  Gary  433,  434 

Williams,  tx  parte  454 

Willing  V.  Baine  304 

Willis  V.  Brady  359.  361 

Willoughby  v.  Willoughby    410.  426 
Wilson  V.  Pateman  121 

Wilson  V.  Spencer  173 

Wilson  V.  JJarman  210 

Wilson  V.  Fielding  284.  415.  420 

Wilson  V.  Ivat  361 

Wilson  V.  Poole  440 

Winchelsea,  Earl  of,  v.  Norcliffe  91. 
115.  182.  373 
Winchcombe  v.  Bishop  of  Winches- 
ter 283.  425 
Wind  V.  Jekyl  1,  2.  478 
Winn  V.  Littleton  187 
Winsor  v.  Pratt  14 
Witter  v.  Witter  182 
Wood  V.  Briant  394 
Woodhouselee,    Lord,   v.   Dal- 

rymple  300 

Woodward  v.  Glasbrook  302 

Woodward  v.  Parry  .  219 

Woodroffe  v.  Wickworth  385 

Worsley  v.  Earl  of  Scarborough    269, 

270 
Worthington  v.  Barlow  464 

Worthington  v.  Evans  313 

Wriglit  V.  Woodward  289 

Wright  V.  llutter  321 


TABLE  OF  CASES  CITED. 


XXXI 


Wright  V.  Lord  Cadogan 

337 

Yaites  v.  Gough 

Wright  V.  Bluck 

495 

Yate  V.  Goth 

Wright,  executors  of,  v.  Nutt 

443 

Yates  V.  Gough 

Wyllet  V.  Sanford 

17 

Yates  V.  Phittiplace 

Wynch  v.  Wynch 

325 

Young  V.  Case 
Young  V.  Holmes 
Young  V.  Radford 

Y. 

Yard  V.  Eland 

241 

Yard  v.  Ellard 

341 

Z 

Yare  v.  Harrison 

480 

Zachariah  v.  Page 

449 
447 
449 
173 
67 
344 
317 


439 


INDEX 

TO  THE  CASES  CITED  OR  INTRODUCED 

BY  THE  AMERICAN  EDITOR. 

Note. — "  V."  follows  the  name  of  the  plaintiff, — "  a?ic?"  the  name  of  the  defendant. 

A. 

Adams  anrf  Hutchins  (3  Greenl.  Rep.  174)              -           -  -    Page  437 

Adams  and  Sword's  Lessee  (3  Yeates  34)               -            -  -  -  303 

Adcock  and  Campbell,  Register,  &c.  (8  Serg.  &  Rawle,  132)  -  -  249 

Alexander  and  Dade  (1  Wash.  Rep.  30)     -            -            -  -  _  223 

Albright  ant/ Simon  (12  Serg.  &  Rawle,  429)          -            -  -  -444 

Allison  V.  Wilson's  Ex.  (13  Serg.  &  Rawle,  330)               -  -  -  412 

Anderson  V.  Neff  (11  Serg.  &  Rawle,  208)              -            -  -  -456 

Andrew  v.  Gallison  (15  Mass.  Rep.  325)     -----  242 

Andrews  and  Hunneman  (6  Pick.  Rep.  126)            -             -  .  -  306 

Anonymous  (1  Hayw.  Rep.  355)     -            -            -            -  -  -  108 

Anonymous  (1  Hayw.  Rep.  243)     -             .             -             -  -  -287 

Ansart  and  Coburn  (3  Mass.  Rep.  318)       -            -            -  -  -    48 

Archer  anrf  Hood  (1  M'Cord's  Rep.  225.477)         -            -  -  -     10 

Armstrong  v.  Simonton  (2  Tayl.  Rep.  266)             ...  -  219 

Arndt  V.  Ardnt  (1  Serg.  &  Rawle,  256)       -            -            .  .  -2 

Arnold  V.  Nussear  (13  Serg.  &  Rawle,  323)            -            -  -  .      8 

Ash  and  Legare  (1  Bay,  464)          -            -            -            -  -  -     14 

Ash  and  Patton  (7  Serg,  &  Rawle,  116)      -----  456 

Austen  one?  Trecothick  (4  Mason's  Rep.  16)            -.            -  -  -    72 

Austin  V.  Gage  (9  Mass.  Rep.  395)              -            -      -      -  -  -416 

Ayr'e  oirf  Fitch  (2  Conn.  Rep.  143)            -            -            -  -  -225 

Ayres  and  Toland  (7  Harr.  &  Johns.  3)       -            -            -  -  -  437 

B. 

Bacon'sAdm.  cnrf  Giles  (4  Harr.  &  Gill.  164)         -            -  -  -463 

Bacon's  Legatees  and  Lewis's  Ex.  3  Hen.  &  Munf.  89)     -  ^^  -  287 

Bainbridge  and  Perkin  (3  Phill.  Rep.  322)               -             -  -  -     15 

Baker  a7id  Johnson  (2  Carr.  &  Payne,  207)             -             -  .  .  245 

Baker  and  Williams  (2  Car.  Law  Rep.  599)           -             -  -  -       8 

Ballard  a/u/ Henry  (2  Car.  Law  Rep.  595)               -             -  -  -       1 

Ballard  V.  Parker  (5  Pick.  Rep.  112)           -             -             -  -  -     22 

Banks  V.  Marksbery  (3  Litt.  Rep.  281)        -             -             -  -  -219 

Barclay  and  M'Neilledge  (11  Serg.  &  Rawle,  103  -            -  -  -  300 

E 


XXXIV  TABLE  OF  AMERICAN  CASES. 

BarkerffH^iSluilt  (12  Ser<r.  &Rawle,  272  -  -  .-  -  -206 

Uartlott  «;?f/ Wecden  (1  Munf.  123)    ,         -  -  -  -  -       4 

J]arrctt  v.  ]5arrctt  (4  Desaiis.  Rep.  ■152)       -----  225 

Bass  «/if/Winship  (12  Mass.  Rep.  li);>)      -  -  -  -  -350 

Battles  V.  lioUey  ((i  Crcenl.]{ep.  115)         -  -  -  -  -US' 

Bayard  and  Gratz  (11  Serg.  &  Rawle,  41)  -  -  -  -  1G6 

Beach  c;?f/IIiiist  (5  Madd.  Rep.  351)          -  -  -  -  -334 

Beach  V.  Lee  (2  Dall.  257)               -             -  -  -  -  -219 

Bean  v.  Farnam  (G  Pick.  Rep.  209)              -  -  -  -  -  425 

Bell  V.  Newman  (5  Serg-.  S:  Rawle,  78)       -  -  -  -  -  455 

Belt  V.  Belt  (1  Ilarr.  k  IM'IIen.  409)           -  -  -  -  -     IG 

Bennett  V.  .Jackson  (2  Phill.  Rep.  190)        -  -  -  -  -       4 

Benson  v.  Leroy  (3  Johns.  Cha.  Rep.  C51)  -  "  -     ,  -  -  413 

Benson  ««r/M'Whorter  (1  llopk.  Cha.  Rep.  28)  -  -  -  -  456 

Benson,  Adm  V.  ]{ice  (2  Nott^M'Cord,  577)  -  -  -  -129 

Bernard  a/K/. let,  Kx.  (3  Call's  Rep.  11)      -.  -  -  -        "     -  339 

Bevan  v.  Taylor  (7  Serir.  k  Rawle,"397)     -  -  -  -  -  382 

Bevans  V.  Briscoe  (4  Harr.  &  Johns.  139)    -  -  -  -  -204 

Bickle,Adm.  V.  Yonno- (3  Serg.  &  Rawle,  235)  -  -  -  -  146 

Biddle  and  Powell  (2  Dall.  Rep.  85)           -  -  -  -  -  300 

Biddle  v,  Wilkins  (1  Peters'  S.  C.  Rep.  G86)  -  -  -  -  437 

Bitzer's  Ex.  v.  Halm  (14  Serg.  &  Rawle,  23^)  -  -  -  -  324 

Black's  Ex.  and  Pringle  (2  Uall.  97)          -  -  -  -  -  477 

Blane  ««rf  Watson's  Adm.  (12  Serg.  <&  Rawle,  131)  -  -  -158 

Blatchford  f/wr/ Murray  (1  Wend.  583)         -  -  -  -  -3^9 

Blewit«7»/M'Caw  (2  M'Cord's  Cha.  Rep.  102)  -  -  -  -380 

Blount  «7iri  M'Callnp  (Cam.  &  Norw.  9G)  -  -  -  -  -219 

Bohn  V.  Headley  (7  Harr.  8c  Johns.  257)     -  -  -  -     ■        -  219 

Boileau  «?k/  Vansant(l  Binn.  444)              -  -  -  -  -       2 

Boiling  and  Fleming  (3  Call.  75)    -             -  -  -  -  -  350 

Bonsall  and  Lehman  (1  Addam's  Rep.  389)  -  -  -  -       4 

Bordeu  v.  Bordeu  (4  Mass.  Rep.  G7)            -  -  -  -  -  108 

Borland  o/i£/ Reed  (14  Mass.  Rep.  208)       -  -  -  -  -     16 

Bostwick,  matter  of  (4  Johns.  Cha.  Rep.  102)-  -  -  -  -327 

Boston,  selectmen  of,  v.  Boylston  (2  Mass.  Rep.  384)         .  -  .  108 

Boudinotv.  Bradford  (2  Yeates,  170.  2  Dall.  Rep.  2GG)     -  -     2.14.355 

Boudinot  and  Bradford  (3  Wash.  C.  C.  Rep.  122)  -         .    -  -  131 

Boylston  and  Selectmen  of  Boston  (2  Mass.  Rep.  384)       -  -  -  108 

Boylston  flHfZ  Dawes  (9  Mass.  Rep.  337)  .  -  -  .-  -  -108 

Bradford's  Administrators,  Case  of  (P.  A.  Browne's  Rep.  87)  -  -  129 

Bradford  and  Boudinot  (2  Yeates,  170.  2  Dall.  Rep.  2GG)  -     2.  14.  355 

Bradford  v.  Boudinot  (3  Wash.  C.  C.  Rep.  122)  -  -  -  .  131 

Bradley  V.  Overhoudt  (13  Johns.  Rep.  404)  ■:  -  -  -198 

Brady  and  Jamison  (G  Serg.  &  Rawle,  4G6)  -  -  -  -  225 

Brailsford  owfZ  Johnson  (2  iVott  8c  M'Cord,  272)  -  .-  -  -     12 

Brattle  V.  Gustin  (1  Root.  425)        -             -  -  '-  -  .          -  116 

Brattle  v.  Converse  (1  Root.  174)  -             -  -  -  -  '          -  116 

Bray  «??(/ Hall  (Cox's  N.  J.  Rep.  212)        -  -  '   -  -  -     25 

Bray  V.  Dudgeon  (GMunf.  Rep.  132)           -  -     '   '    -  -  -     85 

Bray  field  v.  Brayfield  (3  Harr.  8c  Johns.  208)  -  -  -  -       2 

Breed  «Hf7  Osgood  (12  Mass.  Rep.  532)      -  -  -  -  -       9 

Brehman  «/jr/ Weishaupt  (5  Binn.  118)       -  -  -         ,   -        .    -303 

Brent  V.  Dodd  (Gilm.  Rep.  211)     -             -  -  -  -  -     14 

Brewster  v.  Hill  (1  New  Hamp.  Rep.  350)  -  -  -  -       6 

Briscoe  and  Bevans  (4  Harr.  8c  Johns.  139)  -  -  .  -  203 

Bronson  and  Hammick  (5  Day's  Rop.  294)  -  -  -  -  220 

Brooks  V.  Floyd  (2  M'Cord's  Rep.  3G4)      -  -  -  -  -  437 

Brough  and  Moritz  (IG  Serg.  8c  Rawle,  403)  -  -  -  -     15 

Brown,  Ex,  of  Edgar's  Appeal  (1  Dall.  311)  -.  -  -  -484 

Brown,  Ex.  V.  Lambert  (IG  Johns.  Rep.  148)  -  -  -  -440 


TABLE  OF  AMERICAN  CASES.  XXXV 

Brown's  Ex.  v.  Tilden  (5  Harr.  &  Johns.  371)        -            -            -  -      2 

Brown'sAdm.v.  Griffith  (GMunf.  450) 287 

Brown  and  llylton  (1  Wash.  C.  C.  Rep.  299)         -             -             -  -       2 

Brown  a??fZ  Hawley  (1  Root's  Rep.  494)      -          '   -             -             -  -       2 

Brush  V.  Wilkins  (4  Johns.  Cha.  Rep.  506)             -             -             -  -     17 
Bryan  (mrf  The  Commonwealth  of  Pennsylvania  (8  Serg.  &  Rawle,  128     -  249 

Bryan  v.  M'Gee  (2  Wash.  C.  C.  Rep.  337              -            -            -  -  108 

Briickv.  Lantz  (2Rawle,  392)         -             -.            -             -             -  -145 
Bnckner  v.  Smith  (4  Desaus.  Rep.  371)      -----  219 

Bull  an^Malin  (13  Serg.  &  Rawle,  441) 462 

Burch  and  Scott  (6  Harr,  &  Johns.  67)       -             -             -             -  -  129 

Burgwin  v.  Hostler's  Adm.  (Tayl.  Rep.  124)          -             -             -  -  474 

Burley  and  Carlisle  (3  Greenl,  Rep.  250)   -             -             -             -  -  437 

Burns  v.  Burns  (4  Serg.  &  Rawle,  297)       -             -             -             -  12.  14 

Butts'  Adm.  V.  Price  (Cam.  &  Norw.  68)  -            -            -            -  -  108 

Byrne's  Adm.  v.  Stewart  (3  Desaus.  Rep.  135)      -            -            -  -  219 

Byrne  v.  Byrne  (3  Serg.  &  Rawle  54)          -            -            -            -  -  337 

c. 

Callaghan's  Adm.  and  Hall  (1  -Serg.  &  Rawle,  241)           -            -  -  486 

Call  V.  Hardy  (16  Mass.  Rep.  530)              -             -             -             -  -440 

Campbell's  Register,  kc.  v.  Adcock  (8  Serg.  &  Rawle,  132)           -  .    -  249 

Campbell's  Ex.  v.  Sullivan  (Hard.  Rep.  17)    .       -             -             -  -  287 

Carlisle  v.  Burley  (3  Greenl.  Rep.  250)      -             -             -             -  -  437 
Carrington  and  Nelson  (4  Munf.  332)          -----  362 

Carroll  flHcZCassell  (11  Wheat.  Rep.  134) 219 

Carson's  Ex.  and  Stuart  (1  Desaus.  Rep.  501)         -             -             -  301.  339 

Cassell  V.Carroll  (11  Wheat.  Rep.  134) 219 

Chamberlin  c«fZ  Grout,  Adm.  (4  Mass.  Rep.  611)  -             -             -  -448 

Champlin  V.  Tilley  (3  Day's  Rep.  303) 108 

Chandler's  Ex.  v.  Neal's  Ex.  (2  Hen.  &  Munf.  121)        .-             -  -  287 

Chapel  and  Talmadge  (16  Mass.  Rep.  71)              -            -            -  -  108 

Chapman  v.  Gray  (15  Mass.  Rep.  439)       -             -             -             -  -       G 

Chew's  Ex.  and  Griffith  (8  Serg.  &  Rawle,  29)     -             -             -  -  296 

Cheek  and  Watkins  (2  Sim.  &  Stu.  Rep.  205)        -             -             -  -  256 

Cist  and  Reed  (7  Serg.  &  Rawle,  183)        -             -             -             -  -  158 

Clark  Grtc/Hogeboom  (17  Johns.  268)          -            -            -.            -  -440 

Clark  and  Gleason  (1  Wend.  Rep.  303)       -             -             -             .  -  440 

Clark  and  Kirby  (1  Root,  389)         -             -             -             -             -  -  432 

Clark  V.  Herring  (5  Binn.  33)          -             -      '      -             -             -  -  464 

Clarkson  and  Loocock  (1'  Desaus.  Rep.  471)           -             -             .  -  301 

Class  and  Hawkins  (1  Bibb's  Rep.  246)     -            .            -            -  -  460 

Clemson  and  Pusey  (9  Serg.  &  Rawle,  208)           -             -             -  -  347 

Coates  V.  Hughes  (3  Binn.  498)      -            -            -            -            -  -     17 

Coburn  t.  Ansart  (3  Mass.  Rep.  318)          -             -             -             -  -     48 

Cochran's  Will,  Case  of  (3  Bibb's  Rep.  491)         -            -            -  -      2 

Coffbill  V.  Coffbill  (2  Hen.  &  Munf.  467)  -         .  -            -            -  -     15 

Coo-dell's  Ex.  V.  Codgell's  Heirs  (3  Desaus.  Rep.  387)      -       '     -  -  323 

.  Collins  V.  Weiser  (12^ Serg.  &  Rawle,  97)              -            .            -  .  463 

Collin's  Ex.  and  Woodbury  (1  Desaus.  Rep.  425  -             -             -  -  299 

Coleman,  Adm.  v.  M'Murdo  (5  Rand.  Rep.  51)      -             -             -  -  450 

Cplgin  a?2f/Hendren  (4  Munf.  Rep.  231)     -             -             -             -  -     84 

Commonwealth  (of  Virginia)  and  Nimmo's  Ex.  (4  Hen.  &  Munf.  57)  139.  413 

Commonwealth  (of  Pennsylvania)  v.  Rahm  (2  Serg.  &  Rawle,  375)  -  146 

Commonwealth  (of  Pennsylvania)  v.  Shelby  (13  Sorg.  &  Rawle,  348)  301.  418 

Commonwealth  (of  Pennsylvania)  v.  Bryan  (8  Serg.  fe  liavvlc  128)  -  219 

,Commonwealth  (of  Pennsylvania)  v.  Kintr  (4  Serg.  &Rawle,  109)  -  470 

Cooke  and  Lee's  Ex.  ((Jilm.  Rep.  331)       -             -             -             r  -  460 

Cooper  V.  Remscn  (3  .Johns,  ('ha.  Rep.  382)           -            -            -  -311 


XXXVl  TABLE  OF  AMERICAN  CASES. 

Corbin  «?2J  nurwell  (1  Rand.  Rep.  131)      -             -  -  -  -       2 

Cornell  V.  Green  (10  Serg.  &  Ravvle,  14)  -             -  -  .  .158 

Cox  mnt  jMiniise  (5  Johns.  Clui.  Rep.  150)                -  -  -  -     22 

Cradock  and  The  State  of  Maryland  (7  Ilarr.  &  Johns.  40)  -  -  405 

Craighead  v.  Given,  Adm.  (10  Ser^.  &  Rawle,  351)  -  -  -  342 

Crane  «/?r/ Ford  (1  Cow.  Rep.  71)    -            -.           -  -.  -•  -467 

Crary  a»f/ Williams  (8  Covv.  Rep.  24G)       -             -  -  -'  -336 

Crot'ton  V.  Ilsley  (4(;reenl.  Rep.  134)          -             -  -  -"  -     72 

Cross  V.  Gibbons  (2  Addam's  Rep.  455)      -             -  -  -  -     17 

Crozier  V.  Gano  (1  Bibb's  Rep.  257)            -             -  -  -  -219 

Cruger  v.  Heyward  (2  Uesaus.  Rep.  84)     -             -  -  .  -  326 

Cummin  and  Sheble  (1  P.  A.  Browh's  Rep.  253)  ...  -  219 

Cnnlifffmf/MTherson  (11  wSerg.  &  Ravvle,  422)    -  -  -  -  14G 

Curtis  V.  The  Bank  of  Somerset  (7  llarr.  i>i  Johns.  25)  -  .  -  403 

Cutehin  v.  Wilkinson  (1  Call's  Rep.  3)      -             -  -  -  -     85 

Cuthbert  and  Heyvi'ard  (4  Desaus.  Rep.  445)          -  -  -  .  320 

Cuthbert  V.  Cuthbert  (3  Yeates  486)           -            -  -  -  -301 

D. 

Dade  V.  Alexander  (1  Wash.  Rep.  30)        -            -  _  -  -223 

Dale  v.  Roosevelt  (8  Cow.  Rep.  333.)          -             -  -  -  -448 

Damon  «"^^ Stone  (12  Mass. -Rep.  488)        -             -  -  _  .       9 

Dandridge  v.  Minge  (4  Rand.  Rep.  397)      -             -      -      -  -  -  284 ' 

Darrah  v.  M'Nair  (Ashm.  Rep.  230)             -             -  -  -  -  386 

Davenport  and  Lawrason  (2  Call's  Rep.  95)            .  -  .  .  341 

Davis  v.  Davis' Ex.  (3  Binn.  566,  cited)     -             -  -  -  -355 

Davis  and  Havard  (2  Binn.  406)      -             -             -  -  -  -     14 

Davis  fl«f/ Peters  (7  Mass.  Rep.  257)           -            -  r  -  -162 
Davoue  v.  Fanning  (2  Johns.  Cha.  Rep.  252)          ....  362 

Dawes,  Judge,  Sic.  v.  Boylston  (9  Mass.  Rep.  337)  -  -  -  108 

Dawes  v.  Swan  (4  Mass.  Rep.  215)            .             .        •.    .  .  .  324 

Dean,  Ex.  v.  Littlefield  (1  Pick.  Rep.  239)              -  -  -  -     '8 

De  Besse  v.  Napier  (1  M'Cord's  Rep.  107)              -  -  -  -    39 

Den  v.  De  Hart  (1  Halst.  Rep.  450)             .             .  -  .  .  464 
De  Hart  and  Den  (1  Halst.  Rep.  450)          .....  464 

Deklyne  and  Krider  (13  Serg.  «fc  Rawle,  147)         ....  441 

Delavan«?!rf  Pope  (1  Wend.  Rep.  68)          ^             -  .  .  -467 
Dewit  and  Green  (1  Root,  183)        ......  242 

Dewit  V.  Yates  (10  Johns.  Rep.  156)          -             -  .  -  -  -  334 

Dickey  a?2fZ  Morrell  (1  Johns.  Cha.  Rep.  153)         -   ,  -  -  1.  108.  314 

Dickinson  V.  M'Craw  (4  Rand.  Rep.  158)  -             -  .  j  -108 

Dickinson  V.  Purvis  (8  Serg.  &  Rawle,  81)             -  -  -  -303 

Dieser,  Adm.  v.  Sterling  (10  Serg.  &  Ravvle,  119)  -  -  -  441 

Dietrick  v.  Dietrick  (5  Serg.  &  Rawle^  20'7)           -  -  -  ■  -       8 

Digges'  Lessee  v.  Jarman  (4  Harr.  k  M'Hen.  485)  -  -  -  362 

Dillingham  and  Scars  (12  Mass.  Rep.  358)              -  -  -  -       2 

Dixon's  Ex.  v.  Ramsay's  Ex.  (3  Cranch,  319)       .  -  -  -'108 

Dodd  ««rf  Brent  (Gilm.  Rep. '211)  -             -             -  -  -  -     14 

Doe  V.  Teague  (5  Barn,  and  Cresw.  335)     -             -  -  -  -       2  • 

Doolittle  V.  Lewis  (7  Johns.  Cha.  Rep.  45)              -  -  -,  -108 

Dornick  V.  Riechenback  (10  Serg.  k  Rawle,  84)      -  -  -  -       9 

Dorsey  V,  Smithson  (0  Harr.  &  Johns.  61)              -  .  .  -     39 

Dougherty  v.  Snyder  (15  Serg.  &  Rawle,  84)         -  -        .  -  .  -  227 

Douglass  and  Stanet  (2  Yeates,  48)             .            ^  .  .  .       9 

Draper  V.  Jackson  (16  Mass.  Rep.  480)       --          -  -  -  -220 

Drayton  v.  Drayton  (2  Desaus.  Rep.  250)  -             -  -  -  -  362 

Drayton  v.  Shoolbred  (2  Desaus.  Rep.  216)  ....  362 

Drum's  Lessee  v.  Simpson  (6  Binn.  478)  -             -  -  -  -       2 

Duffield  andiSw'ih  (5  Serg.  &  Rawle,  40)  -            -  -  -  30.  300 


TABLE  OF  AMERICAN  CASES.  XXXVll 

Dukehart's  Ex.  v.  The  State  (4  Harr.  &  Johns.  50G)  -  -  -  140 

Dumoiid  V.  M'Gee,  (4  Johns.  Cha.  Rep.  31-8)         -  -  -  -  220 

Duncan  V.  Walker  (2  Dall.  205)      -             -             -  -  -  "386 

Dunch  and  M'Comb  (2  Dall.  73) 477 

Dunham  a«fZ  Mason  (1  Munf.45G)  -             -             -  -  -  -       4 

Dunlap  V.  Dunhap  (4  Desaus.  Rep.  305)      -             -  -  -  2.  2j 

Durant  V.  Starr  (11  Mass.  Rep.  227)            -     ..      -  -  -  -       2 

Dykes  v.  Woodhouse's  Adm.  (3  Rand.  Rep.  288)  -  -  -  -  352 

E. 

Eckart  a«t?Grasser  (1  Binn.  575)  -  ....  -352 

Edelen  v.  Hardy's  Lessee  (7  Harr.  &  Johns.  Gl)  -  -  -  -       2 

Elbeck  V.  Cranberry  (2  Hay w.  Rep.  232)  -  -  -  -  -      2 

Elms,  Ex  parte  (3 Desaus.  Rep.  155)  -----  219 

Elton  a«cZ  Nicholson  (13  Serg.&Rawle,  416)       -  -  -  -461 

Emerson  and  Union  Bank  (15  Mass.  Rep.  159)      .  -  -  -  198 

Eppes  and  Royal  (2  Munf.  479) 1^ 

Evans,  Adm.  v.  Pierson  (1  Wend.  Rep.  30).  -  -    '        -  -  463 

Evans  awZFritez  (13  Serg.  &Rawle,  1)    -  -  -  -  -410 

Evans  v.  Kino-sbury  (2  Rand.  Rep.  120)     -     .        -  -  -  -  213 

Evans  V.  Tatem  (9  Serg.  &Rawle,  252)     -     Z       -  -  -  -108 

Eyre  v.  Goldihg  (5  Binn.  475)        ------  324 

Eyster  V.Young  (3  Yeates,  511)    -    ^        -,  -      '      -  -  "      ^ 


F. 


-  31 

-  362 


Fabre's  Ex.  and  Higginson  (3  Desaus.  Rep.  93)     -  . 
Fannino-  and  Davoue  (2  Johns.  Cha.  Rep.  252)        -  -  - 

Y-d-xmrnand  Bean  (G  Pick.  209)      -  -  .  -  :  '"  "  ^25 

Fenwickv.  Scars  (1  Cranch»259)  -  -  -,  -    -       •-  -108 

Ferris  and  Jackson  (15  Johns.  Rep.  348)     -----  362 

Finley  flnrfM'Lean(2Penns.  Rep.  97) 494 

Fisher  and  the  U.  States  (2  Cranch,  358)  -  -  -  -  -  259 

•Fisher  and  W'are's  Lessee  (2  Yeates,  578)  ...  -  386 

Fishwick's  Adm.  v.  Sewell  (4  Harr.  &  Johns.  393)  -  -  -  432 

Fitch  v.  Ayre  (2  Conn.  Rep.  143)  -  -  -  -  r  -  225 

Fitzsimoris  a?i(/ Wallace  (1  Dall.  162) 162 

Fleminirv.  Boiling  (3  Call.  75)        -  -  -  -  -  -350 

Flintham's  Appeal  (11  Serg.  &Rmvle,  16)  -  -  -       245.480 

Floyd  a«fZ  Brooks  (2  M'Cord's  Rep.  364) 437 

Fonda  OH^  Van  Home  (5  Johns.  Cha.  Rep.  388)     -  -  -  -     42 

Ford  V.  Gardner  (1  Hen.  &  Munf.  72)         -  -  -  .  -    77 

Forbes  v.  Pierie  (1  Harr.  &  Johns.  109)      -  -  -  -  -  463. 

Frazierunrf  Griffith  (8  Cranch,  9)    -  -  -  -  -  -  104 

Frazier  v.  Tunis  (1  Binn.  254)         -  -  -  -  -  -  283 

Frink  v.  Luyten  (2  Bay,  IGG) 440 

Fritz,  Ex.  V.  Evans  (13  Serg;  &  Rawle,  1)  -  .  -  -  -  410 

Fry,  In  the  goods  of  (iHagg.  Rep.  80)     -  -  -  -         .--35 

G. 

G?ige  an(i  Austen  (9  Mass.  395)      -            -  -  -  -  "416 

Gage  V.  Johnson's  Adm.  (1  M'Cord's  Rep.  492)  -  -  -  -  407 

Games  v.  Gaines  (2  Marsh.  Rep.  190)         -  -  -  -.  -     IG 

Galbraith  and  M'Neilledge  (8  Serg.  &  Rawle,  41)  -  -  -  -  300 

Gale  V.  Ward  (14  Mass.  Rep.  352)              -  -  -        "     -  -  1^^ 

Gallison«m/ Andrew  (15  Mass.  Rep.  325)  -  r  -  -  -242 

Gano«HcZCrozier  (I  Bibb's  Rep.  257)         -  -  -  -  -219 

Gardner  and  Ford  (I  Hen.  &  Munf.  72)       -  -  ' .-  -  -    77 


XXXVlll  TABLE  OF  AMERICAN  CASES. 

Gardner  v,  Parker  (3  Made],  Rep.  184)        -             -       •      -             -  -  234 

Gay,  Ex  parte  (5  Mass.  Kep.  Hi))                -             -             -             -  -       & 

Gaylord  «»f/ Stephens  (11  Mass.  Rep.  369)             -             -             -  108.317 

Geer  v.  Winds  (4  Desaus.  Rep.  85)             -             -             -             -  -  300 

Gel  back's  Appeal  (8  Serg.  &  Rawle,  205)  -             -             -            -  -  182 

Genet  V.  Tal!mad<re  (i  Johns.  Cha.  Rep.  3)             -             -            -  -314 

Geyer  v.  Smith,  (I  Dall.  Rep.  347)              -             -             -            -  -  463 

Gibbons  v.  Cross  (2  Addani's  Rep.  455)     -             -             -             -  -     17 

Giles  V.  Bacon's  Adm.  (1  Harr.  &  Gill.  164)           -             -             -  -  463 

Giles's  Heirs  v.  Giles's  Ex.  (Cam.  &  Norw.  Rep.  171)     -            -  -     14 

Gilman  fl«fZ  Sabin  (Adams' Rep,  198)          -             -             -             -  -10^ 

Gillon  V.  'J'urnbull  (1  M'Cord's  Cha.  Rep.  148)      -             -             -  -  323 

Girard  v.  M'Uermott  (6  Serg.  &  Rawle,  128)          -             -             -  -  146 

Given,  Adm.  and  Craighead  (1  Serg.  &  Rawle,  351)           -             -  -  342 
Gleason  v.  Clark,  Adm.  (1  Wend.  Rep.  303)          ....  440 

Glen  and  Haslett's  Adm.  (7  HarJ.  &  .Johns.  17)     -             -          '  -  238.  4.32 

Glenn  V.  Smith  (2  Gill.  &  Johns.  494)         -             -             -             -  •    .     39 

Goldingfl?i(/ Eyre  (5  Binn.  475)      .....  .324 

Good  flH(fMusser  (11  Serg.  &  Rawle,  247)              -            -            -  .    -440 

Goodwin  v.  Jones  (3  Mass.  Rep.  514)         -             -             -             -  -  108 

Gordon  a«c?  Wellborn  (1  Murphy,  103)        -             -.           -             -  -467 

Govanev.  Govane  (1  Harr.  and  M'Hen.  346)           -             -             -  -     85 

Graeme  v.  Harris,  (1  Dall.  456)      -             -             .             .          ■  .  .108 

Graff  V.  Smith's  Adm.  (1  Dall.  481)           -            -            ...  .145 

Gianberryo^fZ  Elbeck  (2Hayw.  232)          -             -             -             .  -       2 
Granberry  v.  Cranberry  (1  Wash.  Rep.  246)           ....  346 

Gratz  V.  Bayard  (11  Serg.  &  Rawle,  41)    -          .  -             -             -  -  166 

Gratz  ««f/ Prevost  (3  Wash.  C.  C.Rep.  434)          -             -             -  -  456 

Gray  a»(/ Chapman  (15  I\Iass.  Rep.  439)     .             -             .             .  .       6 

(Jrecn  and  M'Kay  (3  Johns,  Cha.  Rep.  57)             •-             -             .  -418 

Green  and  Cornell  (10  Serg.  &  Rawle,  14)              -             -             -  -  158 

Green  v.Dewit(l  Root,  183)          -            -            -            -            -  -242 

Green  V.  Stone  (1  Harr.  &  Johns.  405)        -----  464 

Grierv.  Huston  (8  Serg.  &  Rawle,  402)     -            -     .       -            -  -    48 

Griffith  V.  Frazier  (8  C ranch,  9)      -             -            -             -             -  -104 

Griffith  a7id  Hall  (2  Harr.  &  Johns.  283)     -             -          '  -             -•  -  238 

Griffith  and  Brown  (6  Munf.  450)    -             -             -  '          -             -  -  287 

Griffith  V.  Chew's  Ex.  (8  Serg.  &  Rawle,  29)         -            -            -  296.  464 

Grimke  v.  Grimke  (I  Desaus  Rep.  366)      -             -             .    ■        .  .10 
Griswold  v.  Penniman  (2  Conn.  Rep.  564  -             -             ...  230 

Groff««c?  President  of  Orphan's  Court  (14  Serg.  &  Rawle,  181)    -  -  146 

Grout,  Adm.  V.  Chamberlain  (4  Mass.  Gil)     ,          -             -             -  -448- 

Guage  anf?  Swann  (1  Hayw.  3)        -             -  .          -             -             -  -  223 

Guier  V.  Kelley  (2  Binn.  298)         -            -            -            -            -  -  L4<] 

Guierv.  O'Daniel,  1  Binn.  349)      -         ■-            -            -            -  ,386 

H. 

Hahn  anti  Bitzer's  Ex.  (14  Serg.  &  Rawle,  232)    -            -            -  -324 

Hairston  v.  Hall,  (3  Call.  188) 306 

Hall«?u/Hairston  (3  Call.  188)      -             -             -             -             .  .  3O6 

Hall  V.  Bray  (Coxe's  N.  J.  Rep.  212) 25 

Hall  V.  Callaghan's  Adm.  (1  Serg.  &  Rawle,  241)            ,  -             -  -  486 

Hall  V.  Griffith  (2  Harr.  &  Johns.  483)        -             -  "           -             -  -  238 

Hall  V.  Hall  (2  M'Cord's.  Cha.  Rep.  304)  -            -            -            -  -350 

Hamilton  and  Lodge  (2  Serg.  &  Rawle,  493)  -  -  -  -  219 
Hammickv.  Bronson  (5  Day's  Rep.  294)  -----  220 
Hardenberg  and  Ousterhoudt  (19  Johns.  Rep.  267)              ...  463 

Hardy  V.  Call  (16  Mass.  Rep.  530)              ....  .440 

Hardy's  Lessee  and  Edelen  (7  Harr.  &  Johns.  61)             -            -  -       2 


TABLE  OF  AMERICAN  CASES.  XXXIX 

Harris  and  Graeme  (1  Ball.  456)     -            -            -  -  -  -  108 

Harrison  V.  Rowan  (3  Wash.  C.  C.  Rep.  580)         -  -  -  -       3 

Harrison  v.  Sampson  (2  Wash.  Rep.  155)  ....  458 

Hart  a«fZ  Stout  (2  Halst.  Rep.  414)              -            -  ,-  -  -303 

Hartnessv.  Purcell  (1  Wend,  Rep.  303) 466 

Harvey  v.  Richards  (1  Mason's  Rep.  381)  -            -  -  -  -  386 

Haslett's  Adm.  v.  Glenn  (7  Harr.  &  Johns.  17)       -  -  -  238.  432 

Havard  v.  Davis  (2  Binn.  406)         -             -             -  -  -  -     14 

Hawkins  v.  Class  (1  Bibb's  Rep.  246) 460 

Hawkins  G«rfTurnipseed  (1  M'Cord's  Rep.  272)    -  -  -  -     .2 

Hawley  v.  Brown  (1  Root's  Rep.  494)         -             -  -  -  -       2 

Hawthorne  a7id  Patterson  (12  Serg.  &  Rawle,  112)  -  -  170.  305 
Hayes  v.  Seaver  (7  Greenl.  Rep.  237)          -----  339 

Hays  V.  Jackson  (6  Mass.  Rep.  153)           -            -  -  -  -355 

■  Haywood  and  Siglair  (8  Wheat.  675)          -        '    -  -  -  -  456 

Headley  and  Bohn  (7  Harr.  &  Johns.  257)             •-  -  -  -  219 

Heao-er's  Ex.  Case  of  (ISSero-.  &Rawle,  65)         -  -  -    ,  -  480 

Helmes  and  White  (1  M'Cord's  Rep.  430)              -  ...      2 

Hendrenv.  Colgin(4Munf.  Rep.  231)         -             -  -  -  -     84 

Henry  v.  Ballard  (2  Car.  Law  Rep.  595)  '  -            -  -  .   -  -       1 

Hermance  v.  Vernoy  (6  Johns.  Rep.  5)        -    .        -  -  -  ,-  198 

Herring  a«£Z  Clark  (5  Binn.  33)        -.            -             -  -  -  -464 

Heyward  and  Cruger  (2  Desaus.  Rep.  84)               -  -  -  .  326 

Heywarcl  V.  Cuthbcrt(4Desaus.  Rep.  445)              -  -  -  -326 

Hiesler  v.  Knipe,  (1  P.  A.  Browne's  Rep.  319)      -      -  -  -  -  359 

Hicro-inson  v.  Fabre's  Ex.  (3  Desaus.  Rep.  93)       -  -  -  -     31 

Hiffht  V.  Wilson  (1  Dall.  Rep.  94)              -            -  -  -  -      2 

Hifl  V.  Hill  (2  Hay  w.  Rep.  298)     -            -        '    -  -  - .  -  355 

Hill  anrf  Brewster  (1  New  Hamp.  Rep.  350)     -     -  -  -•  -       6 

Hoare  v.  Mulay  (2  Yeates,  161)      ------  464 

Hock  V.  Hock  (6  Serg.  &  Rawle,  47)          -            -  -  -  -       2 

Hodges  anfZ  Nicholls  (1  Peters' S.  C.  Rep.  562)    -    '  -  '-  -456 

Hoffman's  Ex.  a?!(i  Van  Bramer  (2  Johns.  Ca!  200)  -  r  -      -  325 

Hogeboom  v.  Clark  (17  Johns.  268)             -             -  -  -  •       -  440 

Holley  awtZ  Battles  (6  Greenl.  Rep.  145)     -             -  -  -  -118 

HoUoway  and  Jackson  (7  Johns.  Rep.  394)             -  .  -  -  -     15 

Holmes  v.  Tremper  (2  Johns.  Rep.  29)       -            -  -  -  -  198 

Hood  v.  Archer  (1  M'Cord's  Rep.  225.  477)            -  -  -  -     10 

HooeawrfThe  U.  States  (3  Cranch,  90)      -             -  -  -  -  259 

Hooker  V.  Olmstead  (6  Pick.  Rep.  481)      -            -  -  -  -416 

Hornsbyv.  Lee  (2  Madd.Jiep.  16)              -            -  -  -  -219 

Hostler's  Adm.  and  Burgwin  (Tayl.  Rep.  1^4)       -  -  -  -  474 

Howell's  Adm.  v.  Smith  (2  M'Cord's  Rep.,516)     -  -  -  -     37 

Hoyle ««(/ Schuyler  (5  Johns.  Cha.  Rep.  196)        -  ^  -•  -  -220 

Hughes  V.  Hughes,  Ex.  (2  Munf.  209)         -            -  -  ,   .  -  -       9 

Hunneman  and  Andrews  (6  Pick.  Rep.  126)            -  -  -  -  306 

Hunter  anc?  Van  Alst  (5  Johns.  Cha.  Rep.  158)'     -  -  -  -       9 

Hurst  V.  Beach  (5  Madd.  Rep.  351)            -            -  -  -  -  234 

Hurst's  Ex.  and  Wilson  (1  Peters  C.  C.  Rep.  441)  -  .       -  -  470 

Hussey  V.White  (10  Serg.  &  Rawle,  346)               -  -  -  -465 

Huston  and  Grier  (8  Serg.  &  Rawle,  402)  -             -  -  -  -     48 

Hutchins  V.  Adams  (3  Greenl.  Rep/ 174)     -             -  -  -  -437 

Hyltonv.  Brown  (1  Wash.  C.C.  Rep.  299)           -  -  -  -      2 

Hynes  v.  Lewis  (1  Tayl.  Rep.  44)               -            .-  -  -  -  219 

I. 

Irwin  and  Larimer's  Lessee  (4  Binn.  104)              -  -  -  -  146 

Irwin  and  Shields  (3  Yeates,  389)  -             -             -  -  -  -       1 

Ilbly  a«rf  Crofton  (4  Greenl.  Rep.  134)        -            -  -  --  -    72 


Xl  TABLE.  GF  AMERICAN  CASES. 

IiioralKini  V.  Postell's  Ex.(l  M'Cord'sCha.  Rep.91)         -            -  -323 

Izard  V.  Izard  .(-2  Desaus.  Rep.  1'23)             -             -             -             -  -300 

J. 

Jackson  V.  Ferris  (15  Jolins.  Rep.  318)        ....  .363 

.Jackson  cmd  Hays  (G  Mass.  Rep.  153)        .             -             .             .  -  355 

Jackson  aw/ Bennett  (2  Phill.  Rep.  190)     -.           -             -             .  -     ,4 

Jackson  v.  Holloway  (7  Johns.  Rep.  391)   -             -             -          ,  -  -     14 

.Tackson  V.  Jeffries  (1  Marsh.  Rej).  88)         .             .             -.          -  -108 
Jackson  «;?(/ Purdevv  (1  Russ.  Rep.  1)         -             -             -          ...  219 

.Tackson  ««rf  Draper  (IG  Mass.  Rep.  480)    ....  -220 
Jamison  v.  Brady  (t  Yeates,  432)                .....  225 

Jaques  and  Methodist  Episc.  Church  (3  Johns.  Cha.  Rep.  77)       -  -  227 
Jarmau  and  Digges's  Lesses  (4  Ilarr.  &  M'Hen.  485)         ...  3G2 

Jet,  Ex.  V.Bernard  (3  Call's  Rep.  11)         -         ,    -             -             -  -  339 

Johnson  and  Smith  (1  Penns.  Rep.  471)     -             -             -             -  -  150 

Johnson  v.  Smith  (3  Penns.  Rep.  49G)         -             -             -             -  -  150 

Johnson  v.  Baker  (2  Carr.  &  Payne.  207)  -             -             -             -  -  246 

Johnson  V,  Brailsford  (2  Nott&  M'Cord,  272)        -             -             -  -     13 
Johnson's  Adm..ff»fZ  Gage  (1  M'Cord's  Rep.  492)               -             -  -      ,  -  407 

Johnson  anr/ Pasteur  (Cam.  &  Norw.  464)             -             -             -  -219 

Jones  V.  Scott  (1  Russ.  &  Mylne,  255)        -            -            -            -  -287 

Jones  ««fZ  Goodwin  (3  Mass.  Rep.  514)      -             -  .          -             -  -  108 
Jordan  ancZ  South  wick  (13  Mass.  Rep.  113  -            ....    22 

K. 

Kain,  Ex.  v.-Ostrander  (8  Johns.  Rep.  159)            -            -            -   '  -  434 

Kelly  and  Guier  (2  Binn.  298)         -             -            •-             -             -  -  146 

Kendall  V.  Kendall's  Ex.  (5  Munf.  Rep.  272)         -            -            -  -    27 

Kennedy  v.  Savage  (2  P.  A.  Browne'^  Rep.  178)  -             -             -    .  -  158 

Kennedy  V.  Washmuth  (12  Serg.&Rawle,  171)  -             -             -    '  -146 

Kenney  an(/ Udall  (3  Cow.  Rep.  590)          -             -             -             -  -219 

Keppele  ancZ  Long  (1  Binn.  123)     -            .  ■         .            -            -  -  474 

Kerns  V.  Sexman  (16  Serg.  &  Rawle,  315)              -             -             -  -       2 

Kerr,  Ex.  and  Moore  (10  Serg.  &  Rawle,  348)       -             -             -  -  470 

Kerr  v.  Moon  (  9  Wheat.  Rep.  565)             -             -             -             -  -  108 

King  V.  Lyman  (1  Root's  Rep.  104)            -"          "            *            "  -     39 
King  and  The  Commonwealth  of  Pennsylvania  (4  Serg.  &  Rawle,  109)     -  475 

Kingsbury  a«fZ  Evans  (2  Rand  Rep,  120)   -             -             -             .-  -213 

Kintner  tt»fZ  Messeno-er  (4  Binn.  97)            -             -i            -            .- ,  -  146 

Kirby  v.  Clark  (1  Root.  389) 432 

Knipeaw/Hiesler  (1  P.  A.  Browne's  Rep.  ^9)     -             -^         -  -359 

Knorr  v.  Pickett  (4  Desaus.  Rep.  92)           -             -             -             -  -  357 

Krebs  anrf  The  State  (6  Harr.  &  Johns.  31)            -             -             -  -  219 

Krider  v.  Deklyne  (13  Serg.  &,  Rawle,  147)            -            -            -  -•  441 


Lamar  and  Milledge  (4  Desaus.  Rep.  633)  -            -            -            -  .     1 

Lambert  fmfZ.Brown,  Ex.  (16  Johns.  Rep.  148)  -             -             '             "  440 

Landis  V.  Urie  (40  Serg.  &  Rawle,  316)     -  -             -             -             -464 

Lautz  and  Bruch  (2  Rawle,  392)      -             -  -             -.            -             -  145 
Larimer's  Lessee  v.  Irwin  (4  Binn.  104)     -----  146 

Latimore  v.  Rogers  (13  Serg.  &  Rawle,  183)  ....  436 

Latiniore  v.  Simmons  (13  Serg.  &  Rawle,  185)  -             -,            -             -  462 

Lawrason  V.  Davenport  (2  Call's  Rep.  95)  -             -             -             -341 

Lawson  v.  Morrison  (2  Dall.  289)   -             .      •  -           '  -         .    .            -     12 

Lee  and  Beach^2  Dall.  257)            -            -  -    .         -            -            -  219 


TABLE  OF  AMERICAN  CASES, 


xli 


Lee  V.  Cooke's  Ex.  (Gilm.  Rep.  331)         -            -            -            -  -460 

Lee  and  Hornsby  (2  Madd.  Rep.  16) 219 

Lee  V.  Sedgwick  (1  Root's  Rep.  52.)           -            -            -            -  -     89 

Lee  V.  Wright  (1  Rawle's  Rep.  151)           ,            .            .            -  242.  364 

Legate  v.  Ash  (1  Bay,  464)             -            -            -            -            -  -     14 

Lemann  V.  Bonsall  (1  Addam's  Rep.  389)                -             -             -  -       4 

Le  Roy  and  Benson  (3  Johns.  .Cha.  Rep.  651)         -             -         '    -  -  413 

Levis  and  Lieper  (15  Serg.  &  Rawle,  108)              _             .             .  -  468 
Lewis  Ex.  v.  Bacon's  Legatees  (3  Hen.  &  Munf.  89)         ...  287 

Lewis  V.  Lewis  (6  Serg.  &  Rawle,  489)      -             -             -             -•  -       2 

Lewis  V.  Maris  (1  Dall.  Rep.  278)               -            -            -      .'      -  -      2 

Lewis  and  Hynes  (1  Tayl.  Rep.  44)            -            -            -            -  -  219 

Lewis  and  Doolittle  (7  Johns.  Cha.  Rep.'  45)  ....  108 

Lewis  V.  Seaver  (14  Mass.  Rep.  83)            -            -            -            •-  -  418 

Lieper  v.  Levis,  Adm.  (15  Serg.  &  Rawle,  108)    -            -       '     -  -  468 

Lindsay  v.  Lindsay's  Adm.  (1  Desaus.  Rep.  151)                -            -  -  241 

Livingston  v.  Livingston  (3  Johns.  Cha.  Rep.  148)             -            -  -    23 

Livingston  V.  Newkirk  (3  Johns.  Cha.  Rep.  312)                 -             -  -238 

Lloyd's  Lessee  v.  Taylor  (2  Dall.  223) 362 

Lodge  V.  Hamilton  (2  Serg.  &  Rawle,  493)             -            -            -  -219 

Long  V.  Keppele  (1  Binn.  123)        -            -            -            -            -  -474 

Long  an(/Rudd  (4  Johns.  Rep.  190)            -             -             -             -  -440 

Long  and  Wilson  (12  Serg.  &  Rawle,  58)  -             .             -             -  -  462 

Loocock  V.  Clarkson  (1  Desaiis.  Rep.  471)             .i            .            -  -  301 

Lovett  and  Towle  (6  Mass.  Rep.  394)         -            -            -            -  -  432 

Ludwig  and  Stoever  (4  Serg.  &  Rawle,  201)            -             -             -  -     90 

Lunt  and  Mitchell  (4  Mass.  Rep.  659)         -             -             -             -  -     40 

Lupton  V.  Lupton  (2  Johns.  Cha.  Rep.  628)            ...  324.  341 

Luytonanf/Frink  (2Bay.  166)        -             -             -             -             -  -440 

Lyles  V.  Lyles  (2  Nott  &  M'Cord,  531)     -            -            -            -  -       1 

Lyman  and  King  (1  Root.  Rep.  104)           -            -            -            -  -    39 

M.  . 

M'Callup  V.  Blount  (Cam.  &  Norw.  96) 219 

M'Carty  v.  Nixon  (2  Dall.  65,  n.)                -            -            -            -  -  163 

M'Caw  V.  Blewit  (2  M'Cord's  Cha.  Rep.  102)       -            -      '      -  -  380 

M'Cay  V.  M'Cay  (1  Murphy's  Rep.  447)                 -             -             -  -     18 

M'Comb  V.  Dunch  (2  Dall.  73)       -            -            -            -  .          -  -  477 

M'Craw  and  Dickinson  (4  Rand.  Rep.  158)             -            -            -  -  108 

M'Culloughv.  Young  (1  Binn,  63)             -     ■       -            -         *-  -108 

M'Dermott  and  Girard  (6  Serg.  &  Rawle,  128)        -             -             -  -  146 

M'Donald  and  Wagner  (2  Harr.  &  Johns.  346)       -            -            -  -     58 

M'Dowell  V.  Murdock  (1  Nott  &  M'Cord's  Rep.  237)        -            -  -  233 
M'Gee  v.  M'Cants  (1  M'Cord,  517)             .....       1 

M'Gee  anrf  Dumon  (4  Johns.  Cha.  Rep.  218)           -             -             -  -220 

M'Gee  and  Bryan  (2  Wash.  C.  C.  Rep.  337)         ...  -  108 

M'Glinsey's  Appeal  (14  Serg.  &  Rawle,  64)           -            -            -  -  227 

M'Cay  V.  Green  (3  Johns.  Cha.  Rep.  57) 418 

M'Kee  v.  Thompson  (Add.  Rep.  24) 464 

M'Murdo  and  Coleman,  Adm.    (5  Rand  Rep.  51)    -             -             -  -  450 

M'Nair  and  Darrah  (Ashm.  Rep.  236)         -.            -            -            -  -  386 

M'Neilledge  v.  Barclay  (11  Serg.  &  Rawle,  103)  -            -            -  -  300 

M'Neilledge  v.  Galbraith  (8  Serg.  &  Rawle,  41)   -            -            -  -  300 

M'Niell  V.  Quince  (2  Hayw.  Rep.  153)       -            ...            -  -  464 

M'Phersonv.  Cunliff  (11  Serg.  &  Rawle,  422)        -            -            -  -146 

M'Pherson  and  Pringle  (2  Desaus.  Rep.  524)          -             -             -  -     15 

M'Whorterv.  Benson  (1  Hopk.  Cha.  Rep.  28)        -             -             -  -456 

Malin  V.  Bull  (13  Serg.  &  liawle,  441)        -             -             -             -  -463 

Maris  and  Lewis  (1  Dall.  Rep.  278)             -            -            -            -  •  -  .    2 
F 


Xlii  TABLE  OF  AMERICAN  CASES. 

Mark  and  Roosevelt  (6  Johns.  Cha.  Rep.  26G)        -  -  .  .  ggy 

Marksberry  and  Banks  (3  Litt.  Rep.  281)   -----  219 

Martin  (uid  Rol)inson  (2  Yeates,  525)  -----  303 

Mason  v.  Diinman  (1  Munf.  456)     -  -  -  -  -  -       4 

Mason  v,  Harrison  (5  Ilarr.  &  Johns.  480)  -  -  -  -       2 

Massey  v.  Massey's  Lessee  (4  Ilarr.  &  Johns.  141)  -  -  -     18 

Massey  and  Stone  (2  Yeates,  309)  ------  305 

Meason,  Ex  parte,  (5  Binn.  157)     -  -  -       '      -  -  -  238 

Messenger  v.  Kintner  (4  Binn.  97)  -----  14^ 

Methodist  Episc.  Church  v.  Jaques  (3  Johns.  Cha.  Rep.  77)  -  -  227 

Metz's  Appeal  (11  Serg.  &  Rawle,  205)      -  -  -  -  -245 

Metzer  and  Ilench  (6  Serg.  &  Rawle,  272)  -  -  -  -  462 

Mickle,  matter  of,  (14  Johns.  Rep.  324.)     -  -  -  -  -     12 

Miles  V.  Wister  (5  Binn.  477)  ------  327 

Milledge  v.  Lamar  (4  Desans.  Rep.  G23)     -  -  .  -  -       1 

Miller  v.  Plumb  (G  Cow.  Rep.  6G5)  -----  193 

Miller  v.  Miller  (3  Serg.  &  Rawle,  2G7)      -  -  -  -  -       8 

Miller  V.  Umbehower  (10  Serg.  &  Rawle,  31  .  -  -  -435 

Miller  V.  Stout  (2  P.  A.  Browne's  Rep.  294)  -  -       .      -  .  145 

Minge  and  Dandridge  (4  Rand.  Rep.  397     -----  284 

Minuse  v.  Cox  (5  Johns.  Cha.  Rep.  450)    -  -  -  -  -     23 

Mitchell  V.  Lunt  (4  Mass.  Rep.  G59)  -  -  -  -  -     40 

Mitchell  and  Windows  (1  Murphy's  Rep.  127)        -  -  -  -  233 

Moliere's  Lessee  v.  Noe  (4  Dall.  450)         -----  146 

Montague  v.  Smith  (13  Mass.  Rep.  396)     -  -  -  .  .       g 

Moon  and  Kerr  (9  Wheat.  Rep.  565)  -  -  -  -  -  108 

Moore  V.  Kerr  Ex.  (10  Serg.  &  Rawle,  348)  -      .       -  -  -470 

Moritz  V.  Brough  (16  Serg.  &  Rawle,  403)  -      "       -  -  -     15 

INIorrell  v.  Dickey  (1  Johns.  Cha.  Rep.  153)  -  -        ■     -  1.  108 

Morris's  Lessee  v.  Smith  (1  Yeates,  238)  -  -'  -  -  145 

Morrison  and  Lawson  (2  Dall.  289)  -  -  -  -  -     12 

IMoses  V.  INIurgatroyd  (1  Johns.  Cha.  Rep.  119)      -  -  .  -  415 

Mothland  v.  Wireman  (3  Penns.  Rep.  185)  -  -  .  .  416 

Muloy  a;ic?  Hoare  (2  Yeates,  161)   -  -  -  .  -  .  464 

Mumtbrd  and  Nichol  (Kirby's  Rep.  374)     -  -  -  -       '      -  108 

Murdock  and  M'Dowell  (1  Nott  &  M'Cord's  Rep.  237)      -  -  -  233 

Murgatroyd  and  Moses  (1  Johns.  Cha.  Rep.  119)  -  -  -  415 

Murray  v.  Blatchford  (1  Wend.  Rep.  583)  -  -       •      .  .  359 

Musser  a«f/ Good  (11  Serg.  &  Rawle,  247)  -  -  -  -440 

Myers  v.  Myers  (2  M'Cord's  Rep.  255)       -  -  .  .  -  326 

Myers  a?tc?  Rothmaler's  Ex.  (4  Desaus.  Rep.  215)  .  -  -  346 

N. 

Nailer,  Ex.  v.  Stanley  (10  Serg.  &  Rawle,  450)     -            -  .  -  446 

Napier  anrfDe  Besse  (1  M'Cord's  Rep.  107)          -    ■         -  -  -    39 

Nass  V.  Vanswearingen  (7  Serg.  &  Rawle,  192)    .-             -  -  -     40 

Neal's  Ex.  and  Chandler's  Ex.  (2  Hen.  &  Munf.  124)       -  -  -  287 

Neaves'  Case  (9  Serg.  &  Rawle,  186)         -   '         -.            -  -  -     89 

Neffa/ic?  Anderson  (11  Serg.  &  Rawle,  208)            -      .       -  -  -456 

Nelson  v.  Carrington  (4  Munf.  Jlep.  332)                 -             _  -  .  362 

Newell's  Case  (2  M'Cord's  Rep.  453)         -             -             -  '       -  -     10 

Newkirk  and  Livingston  (3  Johns.  Cha.  Rep.  312)             -  .  -  238 
Newman  a?id  Bell  (5  Serg.  &  Rawle,  78)    -----  455 

Nichol  V.  Mumford  (Kirby's  Rep.  274)        -             -             -  -  -  108 

Nichols  V.  Hodges  (1  Peters'  S,  C.  Rep.  562)        -             -  -  -  456 

Nicholson  v.  Elton  (13  Serg.  &  Rawle,  416)           -             -  -  -  460 

Nixon  arid  M'Carty  (2  Dall.  Rep.  65,  71.)                  -             -  -  -  162 

Nimmo's  Ex.  v.  The  Commonwealth  (4  Hen.  &  Munf.  57)  -  -  139 
Noe  and  Moliere's  Lessee  (4  Dall.  450)      -----  146 


TABLE  OF  AMERICAN  CASES. 


xliii 


North  and  Stein  (3  Yeates,  324) 

Nussear  v.  Arnold  (13  Serg.  &  Rawle,  323) 


0. 

O'Daniel  and  Guier  (1  Binn.  349)               -            .  .         -            -  -  386 

Olmstead  and  Hooker  (6  Pick.  Rep.  481)    -             -            -             -  -  416 

Orphan's  Court,  President  of,  and  Groff  (14  Serg.  Si  Rawle,  181)  -  -  146 

Osgood  V.  Breed  (12"  Mass.  Rep.  532)         -            -            -            -  -      9 

Ostrander  and  Kain,  Ex.  (8  Johns.  Rep.  159)          ...  -  434 

Ousterhoudt  v.  Hardenburgh  (19  Johns.  Rep.  267)              -           '-  -  463. 

Overacker  and  Rattoon  (8  Johns.  Rep.  97)               _             .             -  -  242 

Overhouldt  and  Bradley  (13  Johns.  Rep.  404)         -             -             -  -  198 

Owens  and  Shields,  (1  Rawle,  72)               .             -             _             -  -  463 

Owings  V.  Owings  (1  Harr.  &  Gill.  484)    -            -            -            -  -  33.7 

P. 

Paine  V.  Ulmer  (7  Mass.  Rep.  317)             -            -            -            -  -434 

Parke  awrf  Pemberton  (5  Binn.  601)            _            .            .            -  -300 

Parker  and  Gardner  (3  Madd.  Rep.  184)     -             -             -             -  -  234 

Parker  cn^Rallard  (5  Pick.  Rep.  112)        -            -            -.         -  -     22 

Parkin  v.  Bainbridge  (3  Phill.  Rep.  322) 15 

■  Partridge's  Adm.  v.  Partridge  (2  Harr.  &  Johns.  63)          .             .  -  336 

Patterson  v.  Hawthorne  (12  Serg.  &  Rawle,  112)  -             -             -  170.  305 

Payne  an(Z  Walden's  Ex.  (2  Wash.  Rep.  1)             -             -             -  -  341 

Pattonv.  Ash  (7  Serg.  &  Rawle,  116)         -             -             -             -  -  456 

Pearson  v.  Wightman  (2  Rep.  Const.  Court,  343)  -            -            -  -      2 

Pearson  a?zrf  Evans,  Adm.  (1  Wend.  Rep.  30)         -             .             -  -  463 

Peeble's  Appeal  (15  Serg.  &  Rawle,  39)    -            -            -            -  77.  242 

Pelletreau  v.  Rathbone  (18  Johns.  Rep.  429)           -            -            -  -  466 

Pembertonv.  Parke  (5  Binn.  601)  -            -            -            -            -  -300 

Pendleton's  Ex.  and  Swearingen  (4  Serg.  &  Rawle,  289)  -            -  -  468 

Penniman  and  Griswold  (2  Conn.  Rep.  564)            _             -             -  -  220 
Pennsylvania  Agr.  Bank  v.  Stambaugh's  Adm.  (13  Serg.  &  Rawle,  303)  -  470 

Penrose  v.  Penrose,  Ex.  (2  Binn.  440)         -             -             -      •       -  -  466 

Perkins  V.  Williams  (2  Root's  Rep.  462)    -            -            -•           -  -108 
Perrie  aw(Z  Forbes  (1  Harr.  &  Johns.  109)    -             -             -             -   '         -463 

Peters  v.  Davis  (7  Mass.  Rep.  257)            -            -            -            -  .  -  162 

Picket  and  Knorr  (4  Desaus.  Rep.  92)        ...            -  -  357 

Picquet  v.  Swan  (3  Mason's  Rep.  469)        -             -             -             -  -  108 

Plumb  and  Miller  (6  Cow.  Rep.  665) 198 

Plumstead's  Appeal  (4  Serg.  &  Rawle,  545)          -            -            -  -      2 

Pope  v.  Delavan(l  Wend.  Rep.  68) 467 

Porter  anrf  Smith  (1  Binn.  209)       -             -             -    •        -             -  -287 

Postell's  Ex.  and  Ingraham  (1  JVI'Cord's  Cha.  Rep.  94)     -            -  -  323 

Powell  v.  Biddle  (2  Dall.  70) 300 

Prevost  v.  Gratz  (3  Wash.  C.  C.  Rep.  434)            -            -            -  -  456 
Price  and  Butts'  Adm.  (Cam.  &  Norw.  68)              ....  108 

Pringle  v.  M'Pherson's  Ex.  (2  Desaus.  Rep.  524)  -            -            -■  -     14 

Pringle  v.  Black's  Ex.  (2  Dall.  97)             -            -            -            -  -477 

Purcell  and  Hartness  (1  Wend.  Rep.  303)  -             -             -             -  -  466 

Purdew  v.  Jackson  (1  Russ.  Rep.  1)            -             -             -             -  -  219 

Purvis  and  Dickinson  (8  Serg.  &  Rawle,  71)          -             -             -  -  303 

Pusey  v.  Clemson  (9  Serg.  &  Rawle,  208)              -            -            -  -  347 

Q. 

Quince  and  M'Niell  (2  Hayw.  Rep.  153)  -           -           -           -  -  464 


Xliv  TABLE  OF  AMERICA"N  CASES-. 

R. 

Rahm  o«f/ The  Commonwealth  (2  Serg.  &  Rawle,  375)     -  -  -146 

Kanibler  v.  Tryon  (7  Scrpf.  ^  Ravvle,  i)0)    -             -  -  -  -       9 

Kamsay's  Ex,  and  Dixon's  Ex.  (3  Cranch,  311))    -  -  -  .  108 

Rathbonc  and  Pelletrcau  (18  Johns.  Rep.  429)        -  -  .  .  466 

Rattoon  V.  Overacker  (8  .lohns.  R(>p.  97)     -             -  -  -  -242 

Read  and  Walmesley  (1  Ycates,  87)            -             -  -  -  -       2 

Reed  et  ux  v.  Borland  (14  Mass.  Rep.  208)             -  -  -  -     16 

Reed  v.  Cist  (7  Serg.  &  Ravvle,  183)          -             -  -  -  -  158 

Reichenbaek  o»rf  Dornick  (10  Serg.  &  Rawle,  84)  -  -  -  r       9 

Remsen  «/k/ Cooper  (3  Johns.  Cha.  Rep.  382)         -  -  -'  -314 

Reynolds  v.  Reynolds  (IG  Serg.  &  Rawle,  82)        -  -  -  -       2 

Rice  «»rf  Benson  (2  Nott  &  M'Cord,  577)  -             -  -  -  -129 

Richards  rwjrf  Harvey  (1  Mason's  Kep.  381)             .  .  -  -386 

Riley  v.  Riley  (3  Day's  Rep.  74)     -            -            -  -  -  -  108 

Rine  anrf  Wilson  (1  Harr.  &  Johns.  139)   -             -         '   -  -  -306 

Robinson  v.  Martin  (2  Yeates,  525)              -             -    .        -  .  -  303 

Rootes  a??f/ Wilcox  (1  Wash.  Rep.  140)     -             -  -  -  -     17 

Rootes  V.  Webb  (4  Munf.  77)           -             -             -  -  -  -  341 

Roosevelt  and  Dale  (8  Cow.  Rep.  333)        -             -  -  -       ,      -  448 

Roosevelt  V.  Mark  (6  Johns.  Cha.  Rep.  266)            -  -  -  -287 

Rossiter  and  Simmons  (6  Serg.  &  Rawle,  452)          -  -  -  .  -       2 

Rothmaler's  Adm.'  v.  Myers  (4  Desaus.  Rep.  215)  -  .  -  346 

Rothwell  V.  Rothwell  (2  Sim.  &  Stu.  Rep.  48)    •  -  -  -  -  348 

Rowan  and  Harrison  (3  Wash.  C.  C.  Rep.  580)     -  -  -  -       2 

Royal  V.  P^ppes  (2  Munf.  479)         -             -             -  '  -  -  -  122 

Rudd  ff«rf  Long  (4  Johns.  Rep.  190)            -             -  -  -  -440 

Rutledge  v.  Rutledge's  Creditors  (1  M'Cord's  Cha.  Rep.  460)        -  -  412 

s. 

Sabin  V.  Oilman  (Adams' Rep.  198)   -        -            -  -    "  -  .  ]08 

Sampson  and  Harrison  (2  Wash.  Rep.  155)             -  -  _  .  459 

Savage  and  Kennedy  (2  P.  A.  Browne's  Rep.  178)  -  -  -  152 

Scheiffelin  v.  Stewart  (1  Johns.  Ch.  Rep.  620)        .  -  -  .  48O 

Scott  G?irf  Jones  (1  Russ.  &  Mylne,  255)      -             -  .  -  -287 

Scott  V.  Burch  (6  Harr.  &  Johns,  67)           -             -  -  -  -  129 

Sears  ant?  Fenwick  (1  Cranch,  259)              -             .  -  -  -108 

Sears  v.  Dillingham  (12  Mass.  Rep.  358)    -            -  -       •      -  -      2 

Seaver  a?2f/ Hayes  (7  Greenl.  Rep.  237)      -             -  -  -  -339 

Seaver  v.  Lewis  (14  Mass.  Rep.  83)  .....  413 

Sedgwick  and  Lee  (1  Root's  Rep.  52)          -             -  -  -  -     89 

Semmes  v.  Semmes  (7  Harr.  &  Johns.  388)             -  -  -     "        -    .12 

Sewell  and  Fishwick's  Adm.  (4  Harr.  &  Johns.  393)-         .  -  .  433 

Sexman  and  Kerns  (16  Serg.  &  Rawle,  315)            -•  -  -  -       2 

Shauffler  v.  Stoever,  Adm.  (4  Serg.  &,Rawle,  202)  -  -  -121 

Sheble  and  Cummin  (1  P.  A.  Browne's  Rep.  253)  -  -  -  219 
Shelby  and  The  Commonwealth  of  Pennsylvania  (13  Serg.  &  Rawle,  348)  301 

Shelton  v.  Shelton  (1  Wash.  Rep,  53)         -             -  -  -  -  352 

Shields  v.  Irwin  (3  Yeates,  389)      -             -             -  -  -  -       1 

Shields  v.  Owens  (1  Rawle,  72)      -            -             -     .       -  •  -  '         -  463 
Shillaber  v.  Wyman  (15  Mass.  Rep.  322)  -----  242 

Shoolbred  and  Drayton  (2  Desaus.  Rep.  246)           -  -      •       -  -  362 

Shultv.  Barker  (12  Serg.  &  Rawle,  272)     -             -  .  .  -206 

Shutz's  Appeal  (11  Serg.  &  Rawle,  182)     -             -  -  -  -286 

Siglar  V.  Haywood  (8  Wheat.  675)              -             -  .  .  .  45G 

Silver  v.  Williams  (17  Serg.  &  Rawle,  292)            -  -  -  -  258 

Simmons  a/z^/ Lattimore  (13  Serg.  &.  Rawle,  185)  ...  462 

Simmons  and  Rossiter  (6  Serg.  &  Rawle,  452)       -  -  -  -       2 

Simon,  Adm.  V.  Albright  (12  Serg.- &  Rawle,  429)  -  -  -444 


TABLE  OF  AMERICAN  CASES.  xlv 

Simonton  a?if7  Armstrong  (2  Tayl.  Rep.  266)           -  -  -  -219 

Simpson  and  Drum's  Lessee  (6  Binn.  478)              -  -  "  •      .2 

Sinclair  V.  Wilson  (3  Penns.  Rep.  167)       -             -  -  -  -465 

Somerset  Bank  and  Curtis  (7  Harr.  &  Johns.  25)    -  -  -  -  436 

Small  V.  Small  (4  Greenl.  Hep.  220)            -             -  -  -  -       8 

Smart  c?i(Z  Stephens  (1  Car.  Law  Rep.  471)            -  -.  -  -  108 

Smart  a«(Z  Williamson  (Tayl.  Rep.  219)      -             -  -  -.  -386 

Smith  V.  Porter  (1  Binn.  209) 287 

Smith  a«rf  Montague  (13  Mass.  Rep.  396)  -             -"  -  -  -       6 

Smith  07i^  Howell's  Adm.  (2  M'Cord's  Rep.  516)  -  -  -  -     37 

Smith  and  Geyer  (1  Dall.  347,  n.) 463 

Smithfm^Graff  (1  Dall.  141)          -             -             -  -  -  -145 

Smith  and  Morris's  Lessee  (1  Yeates,  238)              -     .  -  -  -  145 

Smith  a«f/ Bruckner  (4  Desaus.  Rep.  371)        ^       -  -  -  -219 

Smith  and  Glenn  (2  Gill  &  Johns.  494)       -      ~       -  -  -  -     39 

Smith  V.  Johnson  (1  Penns.  Rep.  471)        -----  150 

Smith  and  Johnson  (3  Penns.  Rep.  496)      -             -  -  -  -  150 

Smith  and  Zebach's  Lessee  (3  Binn.  69)     -----  362 

Smith's  Adm.  and  Tazewell  (1  Rand.  Rep.  313)     -  -  -  -  173 

Smith's  Case  (2  Desaus.  Rep,  123,  n.)        -             -       ..  -        -    -  -300 

Smithson  a?ic?  Dorsey  (6  Harr.  and  Johns.  61)         -  -  -  -     39 

Snelgrove  y.  Snelgrove  (4  Desaus.  274)      -             -  -  -  -       2 

Snyder  and  Dougherty  (15  Serg.  &  Rawle,  84)        -  -  -  -  227 

Snyder's  Lessee  v.  Snyder  (6  Binn.  483)    -             -  -  -  -  146 

Southwick  V.  Jordan  (15  Mass.  Rep.  113)  -             -  -  -  -     22 

Sperry's  Estate  (1  Ashm.  Rep.  347)  -----  455 

Stambaugh  ami  Penn.  Ag.  Sank  (13  Serg.  &  Rawle,  303)  -  -  468 

Stammers  a??rf  Weston  (1  Dall.  2)  -            -            -  -  -  -      2 

Stanet  v.  Douglass  (2  Yeates,  48)  -            -            -  -  -  -      9 

Stanley  and  Nailer's  Ex.  (10  Serg.  &  Rawle,  450)  -  -  -  146 

Stark  and  Sheppard's  Ex.  (3  Munf.  Rep.  29)           -  -  -  -  341 

Starr  anrf  Durant  (11  Mass.  Rep.  527)          -        ■     -  -  -  -       2 

State  (of  Maryland)  v.  Cradock  (-7  Harr.  &  Johns.  40)  -  -  -  405 

State  (of  Maryland)  and  Dukehart's  Ex.  (4  Harr.  &  Johns.  506)    -  -  140 

State  (of  Maryland)  v.  Krebs  (6  Harr.  &  Johns.  31)  -  -  -  219 

State  Bank  of  N.  Carolina  and  The  U.  States  (6  Peters'  Sup.  C.  Rep.  29)    259 

Stein  V.  North  (3  Yeates,  324) 1 

Stephen  v.  Smart  (1  Carol.  Law  Rep.  471)              -  -  -  -  108 

Stephens  V.  Gaylord  (11  Mass.  Rep.  369)  -            -  -  -  108.347 

Steuart  ant/Tilghman  (4  Harr.  &  Johns.  156)          -  -  -  -       3 

Stevens  and  Thomas  (4  Johns.  Cha.  Rep.  607)       -  -  -  -  300 

Stewart  and  Byrne's  Adm.  (3  Desaus.  Rep.  135)    -  -  -  -  219 

Stewart  and  Scheiffelin  (1  Johns.  Cha.  Rep.  620)  -  -  -  -  480 

Stewart  V.  Carson's  Ex.  (1  Desaus.  Rep.  501)        .  -  -  -  301 

Stewart  v.  Stewaft  (7  Johns.  Cha.  Rep.  244)           -  -    '        -  -     84 

Stewart's  Will,  case  of,  (stated  4  Harr.  &  Johns.  162)  -  -  -      3 

Stockton  V.  Wilson  (3  Penns.  Rep.  129)     -            -      "  -  -  -    37 

Stoever,  Adm.  and  Shauffler  (4  Serg.  &  Rawle,  202)  .  -  -  121 

Stoever  V.  Ludwig  (4  Serg.  &  Rawle,  201)             -  -  -  -     90 

Stone  and  Greave  (1  Harr.  &  Johns.  405)  -            -  -  -  -  464 

Stone  V.  Damon  (12  Mass.  Rep.  488)          -            -  -  -  -      9 

Stone  V.  Massey  (2  Yeates,  369)     -             -             -  -  -  -  305 

Storrs  and  Williams  (0  Johns.  Cha.  Rep,  353)        -  -  .  -  108 

Stout  V.  Hart  (2  Halst.  Rep.  414)   -            -            -  -  -  -303 

Stout  and  Miller  (2  P.  A.  Browne's  Rep.  294)         -  -  -  -  145 

Stovall's  Ex.  V.  Woodson  (2  Munf.  303)     -             -  -  -  -  341 

Strong  V.  Williams  (12  Mass.  Rep.  391)     -            -  -'  -  -337 

Sullivan  and  Campbell's  Ex.  (Hard.  Rep.  17)         -  -  -  -  287 

Swan  and  Dawes  (4  Mass.  Rep.  215)           -             -  r  •  -  324 

Sw^n  and  Picquet  (3  Mason's  Rep.  469)     -            -  -  -  -  108 


Xlvi  TABLE  OF  AMERICAN  CASES. 

Swann  f/«f/ Gnaqrc  (1  Ilayvv.  3)        .....  -223 

Svvcariiigen  v.  Pendleton's  Ex.  (4  Serg.  &  Rawle,  389)      -  -  .  459 

Swicard  and  Wilson  (2  Rep.  Const.  Ct.  So.  CaroliRa,  208)  -  -  464 

Swift  V.  Duffield  (5  Serg.  &  Rawle,  40)      -  -  -  -  -     30 

Sword's  Lessee  v.  Adams  (3  Yeates,  34)    .  .  -  -  -  303 


Taggart  a«c?  Toner  (5  Binn.  491)     -             -             -            -            -  -       1 

Tallnian  and  Woodward's  Ex.  and  Wooer  (Coxe's  N.  J.  Rep.  153)  -  348- 

Tallmadge  V.  Chapel  (IG  Mass.  Rep.  71)   -             -            -             -  -108 

Tallmadge  and  Genet  (I  .Johns.  Cha.  Rep.  3)          -             -             -  -  314 

Tatem  and  Evans  (9  Serg.  and  Rawle,  252)  ....  108 

Taylor  ««c?  Bevan  (7  Serg-.  and  Rawle,  397)            -             -        \   -'  -382 

Taylor  and  Lloyd's  Lessee  (2  Ball.  223)     -             -             -            -  -  363 

Taylor  v.  Taylor  (2  Nott  &  M'Cord,  485)  -             -             -             -  -     16 

Tazewell  v.  Smith's  Adm.  (1  Rand.  Rep.  313)        -            -             -  -  173 

Temple  v.  Temple  (1  Hen.  &  Munf.  476)    -             -             -             -  -       9 

Thomas  and  Stevens  (4  Johns.  Cha.  Rep.  607)       ...  -  300 

Thomas  v.  Thompson  (2  Johns.  Rep.  471)               -             -             -  '          -  296 

Thompson  ««c?  Thomas  (2  Johns.  Rep.  471)             -             -     ,        -  -  296 

Thompson's  Adm.  v.  Thompson's  Ex,  (6  Munf.  514)          -             -  .          -  150 

Tilden  <mfZ  Brown's  Ex.  (5  Harr.  &  Johns.  371)     -             -             -  -       2 

Tilghman  V.  Stewart  (4  Harr.  &  Johns.  156)           -             -             -  -.3 

Tilley  and  Champlin  (3  Day's  Rep.  303)    -             -             -             -  -  108 

Todd  V.  Todd's  Ex.  (1  Serg.  &  Rawle,  453),           -            -            -  -  418 

Tomlinson  v.  Tomlinson,  Adm.  (1  Ashm.  Rep.  224)           -            -  -     17  . 

Toner  v.  Taggart  (5  Binn.  490)        -             .             .             .             .  -       1 

Torbert  v.  Twining  (1  Yeates,  432)              -             -             -             -  -  225 

Towle  v.  Lovett  (6  Mass.  Rep.  294)            -             -             -             -  -  432 

Trecothick  v.  Austen  (4  Mason's  Rep.  16)              -            -            -  -    72 

Tremper  and  Holmes  (2  Johns.  Rep.  29)     -             -             -            -  -  198 

Trevor's  Adm.  v.  Ellenberger's  Ex.  (2  Penns.  Rep.  94)     -             -  ,  -  145 

Tryon  07?fZ  Rambler  (7  Serg.  &  Rawle,  90)              -             -             -  -       9- 

Tucker  and  Wells  (3  Binn.  370)      -             -             -             -             -  -  233 

Tunis  07(f/ Frazier  (1  Binn.  254)       ......  283 

TurnbuU  and  Gillon  (1  M'Cord's  Cha.  Rep.  148)   -             -            -  -  323 

Turnipseedv.  Hawkins  (1  M'Cord's  Rep.  272)       -  ...      2 

Twining  and  Torbert  (1  Yeates,  432)           -            -          .  -            -  -  225 

u. 

Udall  V.  Kenney  (5  Cow.  Rep.  590)            -            -            -        .    -  -  219 

Ulmer  and  Paine  (7  Mass.  Rep.  317)           -             -             -             -  -  434 

Umbehower  and  Miller  (10  Serg.  &  Rawle,  31)      -             -            -  -  435 

U.  States  V.  Fisher  (2  Cranch,  358)             -             -             ...  .259 

U.  States  V.  Hooe  (3  Cranch,  90)   -             -             -             -             -  -  259 

U.  States  V.  The  State  Bank  of  N.  Carolina  (6  Peter's  Sup.  C.  Rep.  29)  -  259 

Union  Bank  v.  Emerson  (15  Mass.  Rep.  159)        -            -            -  -  198 

Urie  and  Landis  (10  Serg.  &  Rawle,  316)  -            -          ■  -            -  -  464 

V. 

Vanderost's  Ex.  v.  Whitner  (2  Bay,  399)  ....--  440 

Van  Alst  v.  Hunter  (5  Johns.  Cha.  Rep.  158)    .      -            -             -  -       9 

Van  Bramer  v.  Hoffman's  Ex.  (2  Johns.  Ca.  200)               -             -  -  325 

Van  Home  v.  Fonda  (5  Johns.  Cha.  Rep.  388)       -             -             -  -     42 

Van  Swearingen  and  Nass  (7  Serg.  and  Rawle,  192)           -             -  -     40 
Vaughan  v.  Wilson  (4  Hen.  and  Munf.  452)            ....  220 

Vernoy  and  Hermance  (6  Johns.  Rep.  5)     -            -            -            -  -  198 


TABLE  OF  AMERICAN  CASES.  xlvii 


w. 


Wachsmuth  and  Kennedy  (12  Serg.  and  Rawle,  171)  -  -  -  146 

Wao-nerv.  M' Donald  (2  Harr.  &  Johns.  34G)          -  -  -  %     58 

Wafden's  Ex.  v.  Payne  (2  Wash.  Rep.  1) 341 

Wales  V.  Willard  (2  Mass.  Rep.  121) 1.20 

Walker  ««(/ Duncan  (2  Dall.  205)   -             -             -  -  -  -386 

Walker's  Adm.  v.  Smith  (3  Yeates,  480)   -             -  -  -  -  383 

Walker's  Estate  (9  Serg.  &  Rawle,  223)    -             -  -  -  -  456 

Walker's  Estate  (3  Rawle,  239)      -             -             -  -  -  -  418 

Wallace  V.  Fitzsimons  (1  Dall.  248)            -             -  -  -  -162 

Walmesley  v.  Read  (1  Yeates,  87)               -             -  -  -  -       2 

Walton  V.  Walton  (7  Johns.  Cha.  Rep.  264)            -  -  -  22.  301 

Ward  and  G<ile  (14  Mass.  Rep.  352)            -             -  -  -  -  198 

Ward  and  Woodrop  (3  Desaus.  Re^.  203)  -             -  -  -  -  455 

Ware's  Lessee  v.  Fisher  (2  Yeates,  578)     -             -     '  -  -  -  386 

Warren  v.  Wigfall  (3  Desaus.  Rep.  47)      -             -      .  -  -  -  300 

Watkins  v.  Cheek  (2  Sim.  &  Stu.  Rep.  205)           -      '  -  -  -  256 

Watson,  Adm.v.  Blane  (12  Serg.- &  Rawle,  131)   -  -  -  158.  432 

Watson  and  Wilson  (1  Peters'  C.  C.  Rep.  269)     -  -  -  -  145 

Webb  ttW(Z  Rootes  (4  Munf.  77)        -             -             ^^  .  .  -341 

Weeden  v.  Bartlett  (6  Munf.  123)  -             -             -  -  -  -       4 

Weishaup  v.  Brehman  (5  Binn.  118)            -   ,         -  -  -  -  303 

Wellborn  v.  Gordon  (1  Murph.  103)          ■  -             -  -  -  -  467 

Wells  V.  Tucker  (3  Binn.  370)        -            -            -  -  -  -  233 

West's  Case  (cited  1  Dall.'  Rep.  281)          -             -  -  -  -       2 

West  V.  West  (10  Serg.  &  Rawle,  446)      -            -  -  -  -      8 

Weston  V.  Stammers  (1  Dall.  Rep.  2)         -            -  -  -  -      2 

Whitaker  v.  Whitaker  (6  Johns.  Rep.  117)             -  -             81.  219.  463 

White  and  Hussey  (10  Serg.  &  Rawle,  346)           .  -  .  .  465 

White  V.  Helmes  (1  M'Cord's  Rep.  430)    -            -  -  .  .      2 

Whitner  and  Vanderost's  Ex.  (2  Bay,  899)            -  -  .  .  440 

Wieser  arec?  Collins  (12  Serg.  &  Rawle,  97)       ...  -  .  -463 

Wigfall  a?rc?  Warren  (3  Desaus.  Rep.  47)    -             -  -  -  300,301 

Wightman  and  Pearson  (2  Rep.  Const.  Court,  343)  -  -  -       2 

Wilcox  V.  Rootes  (1  Wash.  Rep.  140)         -            -  -  -  .     17 

Wilkins  and  Biddle  (1  Peters'  Sup.  C.  Rep.  686)  -  -  -  .  437 

Wilkins  and  Brush  (  4  Johns.  Cha.  Rep.  506)        -  -  *"  .     17 

Wilkinson  and  Cutchin  (1  Call's  Rep.  2)   -             -  -  -  -     85 

Willard  and  Wales  (2  Mass.  Rep.  121)       -             -  -        .    -  -  120 
Williams  and  Silver  (17  Serg,  &  Rawle,  292)         ....  258 

Williams  and  Perkins  (2  Root's  Rep.  462)             -  -  -  -  108 

Williams  anrf  Strong  (12  Mass.  391)           -             -  -  -  -337 

Williams  v.  Crary  (8  Cow.  Rep.  246)         -          '  -  -  -  -  336 

Williams  v.  Storrs  (6  Johns.  Cha.  Rep.  353)          -  -  .  _  108 

Williamson  v.  Smart  (Tayl.  Rep.  219)        -            -     .  -  -  .  386 

Wilson  and  Stockton  (3  Penns.  Rep.  129)  -             -  -  -  -     37 

Wilson  and  Sinclair  (3  Penns.  Rep.  167)  -             -  -  -  -  465 

Wilson  a?j<ZHight  (1  Dall.  Rep.  94)           -            -  -  -  '-2.9 

Wilson  V.  Hurst's  Ex.  (1  Peters'  C.  C.  Rep.  441)  -  -  -  468 

Wilson  V.  Long  (12  Serg.  &  Rawle,  58)     -             -  -  -  -  4G2 

Wilson  V.  Rine  (1  Harr.  &  Johns.  139)      -----  306 

Wilson  and  Swicard  (2  Rep.  Const.  Ct.  So.  Carolina,  208)  -  -  464 

Wilson  and  Vaughan  (2  Hen.  and  Munf.  452)         -  -  -  -  222 

Wilson  V.  Watson  (1  Peters' C.  C.  Rep.  269)        -  -  -  -145 

Wilson  V.  Wilson  (3  Binn.  562.  9.  Serg.  &  Rawle,  428)  -  -  -  355 

Wilson's  Ex.  a??c/ Allison  (13  Serg.  &  Rawle,  330)  .  .  -  412 

Windows  v.  Mitchell  (1  Murphy's  Rep.  127)          -  -  -  233 
Winds  and  fieer  (4  Desau^.  Rep.  85)          -----  300 

Winship  v.  Bass  (12  Mass.  Rep.  199)         -            -  -  -  350 


Xlviii  TABLE  OF  AMERICAN  CASES. 

Wireman  and  Mothland  (3  Penns.  Rep.  185)  ....  416 

Wister  and  Miles  (5  Binn.  477)       ----..  327 

Withcrspoon's  Heirs  v.   Witherspoon's  Ex.  (2  M'Cord's  Rep.  520  -      3 
Woddrop  V.  Ward  (3  Desaus,  Rep.  203)     -----  455 

Wood  V.  Tallmaii  and  Woodward's  Ex.  (Coxe's  N.  J.  Rep.  153)  -  -  318 

Woodberry  v.  Collins'  Ex.   (1  Desaus.  Rep.  425)  .             -             -  -  21)9 

Woodhouse  Adm.  and  Dykes  (3  J^aiid.  Rep.  288)  -             -             -  -  352 

Woodson  and  Stovall's  Ex.  (2  Munf.  303)               .             -             .  .  341 

Wright  a?!^  Lee  (1  Ravvie's  Rep.  151)        -             .             .             -  242.364 

Wright  V.  Wrig-ht  (1   Cow.  Rep,  598)         -             -             -             -  -234 

Wright  V.  Wright's  Ex.  (2  Desaus.  liep.  214)        -             -             -  -     10 

Wyman  a?it^Shillaber  (15  Mass.  Rep.  322)             -             .             .  -212 

Y. 

Yarnall's  Will,  case  of,  (4  Rawle,  46)         -            -            -            -  -      4 

Yates  o?;</  Dewitt  (10  Johns.  Rep.  156)     -             -             -             -  -334 

Yerby  v.  Yerby  (3  Call's'  Rep.  334)            -             -             -             -  •        .     18 

Young  ««c?  Eyster  (3  Yeates,  511)            •-             -             -             -  -       2 

Young  and  Bickie,  Adm.  (3  Serg.  &  Rawle,  235)  -             -             -  -  146 

Young  and  M'Cullough  (1  Binn.  63)          -            -            -            -  -  108 

z. 

Zebach's  Lessee  v.  Smith  (3  Binn.  69)       -            -            -            -  -  3$3 


AN  ACT 

RELATING  TO  REGISTERS  AND  REGISTERS'  COURTS. 


Sect.  1.    //  is  enacted  by  the  Senate  and  House  of 
Representatives  of  the  Commonwealth  of  Pennsylva- 
nia in  General  Assembly  rnet,  That  every  person  who  Register's 
shall  be  appointed  to  the  office  of  Register,  before  he  shall  oath  of  office, 
enter  upon  the  duties  of  the  office,  shall  make  oath  or 
affirmation  to  support  the   constitution  of  the    United 
States  and  the  constitution  of  this  commonwealth,  and  to 
perform  the  duties  of  the  office  of  Register  with  fidelity; 
and  shall  also,  with  one  or  more  sureties,  to  be  approved  Approval, 
of  by  any  two  judges  of  the  Common  Pleas  of  the  re-  Penalty,  &c. 
spective  county,  and  also  by  the  Governor,  give  a  joint  °     °"  ' 
and  several  bond  to  the  commonwealth  in  a  sum  equal  to 
half  the  sum  prescribed  by  law  for  the  official  bond  of  the 
sheriff  for  tlie  time  being  of  the  same  county,  with  con- 
dition faithfully  to  execute  the  duties  of  his  said  office, 
and  well  and  truly  to  account  for  and  pay,  according  to  General  du- 
law,  all  moneys  received  by  him  for  the  use  of  the  com-  ties, 
monwealth,  and  to  deliver  up  the  books,  seals,  records 
and  other  writings,  belonging  to  his  said  office,  whole, 
safe  and  undefaced,  to  his  successor  in  office,  which  said 
bonds  shall  be  for  the  use  of  all  persons  concerned,  and 
for  the  relief  of  all  who  may  be  aggrieved  by  the  acts  or 
neglect  of  such  register. 

Sect.  2.  Every  person  appointed  as   aforesaid   shall  Bond  to  be  ac- 
cause  the  bond  her^nbefore  prescribed,  being  duly  ac- J^nowiedged, 
knowledged  by  him  and  his  sureties,  before  a  magistrate  transmitted  to 
of  the  city  or  county  respectively,  to  be  recorded  by  the  the  Secretary 
recorder  of  deeds  of  the  respective  county,  and  as  soon  ^olJ^^eaith!' 
afterwards  as  convenient,  to  be  transmitted  into  the  office 
of  the  Secretary  of  the  Commonwealth,  for  custody,  of 
which  transmission  he  shall  be  entitled  to  receive  the 
Secretary's  certificate  without  fee  or  reward. 

Sect.  3.  Copies  of  the  record  of  the  official  bond  of  Copies  of  the 
any  Register,  acknowledged  and  recorded  as  aforesaid,  J,'^';,"}*^";.^  "^ 
and  duly  certified  by  the  recorder  of  deeds  for  the  time  iicnco. 
G 


1  REGISTERS  AND  REGISTERS'  COURTS. 

being,  shall  be  good   evidence  in  any  action   brought 
against  him  or  his  sureties,  on  such  bond,  according  to  its 
form  and  effect,  in  the  same  manner  as  the  original  would 
be  if  produced  and  offered  in  evidence. 
Registers  to         Sect.  4.  Evcry  Register   shall   appoint  and   keep  a 
appoint  dcpu-  deputy  to  officiate  in  his  absence,  for  whose  conduct  he 
^*^^-  and  his  sureties  shall  be  accountable,  and  such  deputy 

shall  be  capable  in  law  to  take  the  probate  of  wills  and 
testaments,  and  to  grant  letters  of  administration,  and  to 
do  whatever  else  by  law  appertains  to  the  office  of  Re- 
gister. 
Jurisdiction         Sect.  5.  Eveiy  Register  qualified  to  act  as  aforesaid, 
of  Registers.    gj^,^|}  j^^^^,^  jurisdiction  within  the  county  for  which  he 
shall  have  been  appointed,  of  the  probate  of  wills  and 
testaments,  of  the  granting  of  letters  testamentary,  and  of 
administration,  of  the  passing  and  filing  of  the  accounts  of 
executors,  administrators  and  guardians,  and  of  any  other 
Acts,  kc.  not  matter  whereof  the  jurisdiction  may  be  at  any  time  ex- 
j^Hsdiction     pressly  annexed  to  his  said  office,  and  the  act  of  any 
void.  Register,  in  any  matter  whereof  another  Register  has  the 

exclusive  jurisdiction,  shall  be  void  and  of  no  effect. 
Jmisdiction         Sect.  G.  Letters  testamentary  and  of  administration 
cSSases."  shall  be  grantable  only  by  the  Register  of  the  county, 
within  which  was  the  family  or  principal  residence  of 
the  decedent,  at  the  time  of  his  decease,  and  if  the  dece- 
dent had  no  such  residence  in  this  commonwealth,  then 
by  the  Register  of  the  county  where  the  principal  part  of 
the  goods  and  estate  of  such  decedent  shall  be;  and  no 
Letters  gi-ant-  letter  testamentary  or  of  administration,  or  otherwise, 

GCi  out  OI   tllC  •  • 

state  invalid,    purporting  to  authorize  any  person  to  intermeddle  with 

the  estate  of  a  decedent,  which  may  be  granted  out  of 

this  commonwealth,  shall  confer  upon  such  person  any  of 

the  powers  and  authorities  possessed  by  an  executor  or 

administrator,  under  letters  granted  within  this  state. 

Registersmay      Sect.  7.  The  Register  having  jurisdiction  as  aforesaid, 

havingcontroi  shall,  at  the  instance  of  any  person  interested,  issue  a  cita- 

ofatestaraen-  tion  to  any  person  having  the  possession  or  control  of  a 

to  m-oduceft    testamentary  writing,  alleged  to  be  the  last  will  and  testa- 

for  probate,     ment  of  a  decedent,  requiring  him  to  produce  and  deposit 

the  same  in  his  office  for  probate;  and  if  such  person  shall 

conceal  or  withhold  such  writing,  during  the  space  of 

fifteen  days,  after  being  personally  served  with  a  citation, 

issued  in  the  manner  and  form  aforesaid,  he  shall  be  lia- 

Misdemeanor  ^le  to  an  indictment  as  for  a  misdemeanor,  or  to  an  ac- 

to  wiUihoid  it.  tion  for  damages  by  the  person  aggrieved. 

Sect.  S.  Whenever  any  testarnentary  uniting  shall  be 
May  cite  wit-  offered  for  probate,  before  any  Register  having  jurisdic- 
nessestoap-    ^^Jqj-j  thereof,  such  Rcffistcr  sliall  have  power  to  issue  a 

pear  and  tes-       .       .  '       .    .  ~         ,  ^       ,  i         -i      i 

tifv,  Sec.  Citation  to  any  person  vVhose  name  may  be  subscribed 


REGISTERS  AND  REGISTERS'  COURTS.  U 

thereto  as  a  witness,  or  who  may  be  alleged  to  him  to  be 
otherwise  capable  of  proving  the  due  execution  of  such 
testamentary  writing,  such  person  being  within  the  pro- 
per county,  or  within  thirty  miles  of  the  office  of  such 
Register,  commanding  him,  under.a  penalty  of  three  hun- 
dred dollars,  to  appear  before  him  at  the  office  of  the 
Register  of  the  county,  on  a  day  certain,  not  less  than 
five  days  from  the  service  of  such  citation,,  and  depose 
and  testify  what  he  may  know  concerning  the  execution 
of  such  writing;  and  if  such  person,  being  cited  and  sum- 
moned as  aforesaid,  shall  refuse,  or  neglect  to  appear  as 
commanded,  the  Register  shall  have  power  to  issue  an 
attachment  against  such  witness,  to  compel  his  appear-  And  compel 
ance,  or  the  party  aggrieved  may  have  an  action  against  appearance  by 
him  to  recover  the  said  penalty,  in  the  manner  now  al- 
lowable by  law,  in  cases  of  subpoenas  issued  to  witnesses 
by  the  courts  of  Common  Pleas. 

Sect.  9.  On  the  application  of  any  person  interested.  Registers  may 
every  Register  shall  have  power  to  issue  commissions  to  issue  commis- 
take  the  depositions  of  witnesses  in  other  counties  or  testimony^'^ 
states,  or  foreign  countries,  in  all  cases  within  his  juris- 
diction, upon  interrogatories  filed  in  his  office. 

Sect.  10.   No  nuncupative  will  ^hall  be  admitted  to  Onnuncupa- 
probate,  nor  shall  lettei's  testamentary  thereon  be  issued,  ''Yfi  y''^  ^°^ 
till  fourteen  days  after  the  day  of  the  death  of  the  dece-  teen  days,  nor 
dent  be  fully  expired,  nor  shall  any  nuncupative  will,  at  without  citi- 
any  time,  be  admitted  to  probate,  unless  process  have  first  issued'^to  wi- 
issued  to  call  in  the  widow,  if  any,  and  such  of  his  rela-  dow  and  kin- 
tions  or  next  of  kin  as  would  be  entitled  to  the  adminis-  ^^'^^' 
tration  of  his  estate,  in  case  of  intestacy,  to  contest  the 
same,  if  they  please. 

^Sect.  11.  No  testimony  shall  be  received  to  prove  any  Oral  testlmo- 
nuncupative  will  after  six  months  elapsed  from  the  speak-  ny  of  nuncu- 
ing  of  the  pretended  testamentary  words,  unless  the  said  jl^adn'ii^sfbL 
testimony,  or  the  substance  thereof,  were  committed  to  after  six 
writing  within  six  days  after  the  making  of  such  will.       months,  &c. 

Sect.  12.  Copies  of  wills  and  testaments  proved  in  copies  of 
any  other  state  or  country,  according  to  the  laws  thereof,  wills  proved 
and  duly  authenticated,  may  be  offered  for  probate,  before  °^\°^  the 
any  Register  having  jurisdiction,  and  proceedings  thereon  offered,  kc. 
may  be  had  with  the  same  effect,  so  far  as  respects  the  '"stead  of  tlie 
granting  of  letters  testamentary,  or  of  administration,    "^''" 
with  the  will  annexed,  as  upon  the  originals;  and  if  the 
executor  or  other  person  producing  any  such  copy  shall 
produce  also  therewith  a  copy  of  the  record  of  the  pro- 
ceedings for  the  probate  of  the  original  thereof^  and  of 
the  letters  testalnentary,  or  other  authority  to  administer, 
issued  thereon,  attcstcid  by  the  person  having  power  to 
receive  the  i)rubate  of  such  original,  in  the  place  where 


'  ^t 


lii 


REGISTERS  AND  RRCISTERS'  COURTS. 


Register  may 
issue  a  pre- 
cept for  the 
ti'ial  of  facts 
in  dispute. 


Form  of  the 
precept. 


it  was  proved,  with  tlic  seal  of  office,  if  there  be  one  an- 
nexed, together  with  the  certificate  of  the  chief  judge 
or  presiding  magistrate  of  the  state,  country,  county  or 
district  where  such  original  was  proved,  that  the  same 
appears  to  have  been  duly  proved,  and  to  be  of  force,  and 
that  the  attestation  is  in  due  form,  such  copies  and  pro- 
ceedings sliall  be  deemed  sufficient  proof,  unless  the  con- 
trary be  shown,  for  tlie  granting  of  letters  testamentary 
or  of  administration,  with  the  will  annexed,  as  the  case 
may  require,  without  the  production  or  examination  of 
the  witnesses  attesting  such  will. 

Sect.  13.  Whenever  a  caveat  slxall  be  entered  against 
the  admission  of  any  testamentary  writing  to  probate,  and 
the  person  entering  the  same  shall  allege  as  the  ground 
thereof  any  matter  of  fact  touching  the  validity  of  such 
writing,  it  shall  be  lawful  for  the  Register,  at  the  request 
of  any  person  interested,  to  issue  a  precept  to  the  court  of 
Common  Pleas  of  the  respective  county,  directing  an 
issue  to  be  formed  upon  the  said  fact  or  facts,  and  also 
upon  such  others  as  may  be  lawfully  objected, to  the  said 
writing,  in  the  following  form,  viz: 

^ifciiilfefc^  County  ss  The  Commonwealth  of  Pennsyl- 
1  L.  S.  (     vania. 

To  the  judges  of  the  court  of  Common  Pleas  of  the  said 
county  greeting: — Whereas,  A.  B.  on  the  day 

of  in  the  year,  &c.  presented  to  G.  H.,  our 

Register  of  wills  of  said  county,  for  probate,  a  certain 
writing  hereto  annexed,  purporting  to  have  been  made  the 
day  ■      in  the  year,  &c.  [or 

otherwise  describing  the  paper  in  question,]  which  said 
writing  the  said  A.  B.  avers  is  the  last  will  and  testa- 
ment of  the  said  C.  D.;  and  whereas  E.  D.,  who  is  a  son 
and  heir  of  the  said  C.  D.  [or  intermarried  with  F.  D. 
who  is  a  daughter  and  heir,  &c.  according  to  the  fact,] 
hath  objected  before  our  said  Register  that  the  said  wri- 
ting was  procured  by  duress  and  constraint,  [stating  the 
matters  of  fact  objected,]  and  whereas  the  said  A.  B.  [or 
E.  D.]  hath  requested  that  an  issue  may  be  directed  into 
our  said  court  to  try  by  a  jury  the  validity  of  the  said 
writing,  and  the  matters  of  fact  which  may  be  objected 
thereto  in  our  said  court,  therefore  we  command  you  that 
you  cause  an  action  to  be  entered  upon  the  records  of  our 
said  court,  as  of  the  day  of  the  delivery  of  this  our  pre- 
cept into  the  office  of  the  prothonotary  of  our  said  court, 
between  the  said  A.  B.  and  the  said  E.  D.,  so  that  an 
issue  therein  may  be  formed  upon  the  merits  of  the  con- 


REGISTERS  AND  REGISTERS'  COURTS. 


liii 


troversy  between  the  said  parties,  and  tried  in  due  course, 
according  to  the  practice  of  our  said  courts  ■  in  actions 
commenced  by  writ;  and  further,  that  you  cause  all  other 
persons  who  may  be  interested  in  the  estate  of  the  said 
C.  D,  as  heirs,  relations,  or  next  of  kin,  devisees,  legatees, 
or  executors,  to  be  warned,  so  that  they  may  come  into 
our  said  court,  and  become  party  to  the  said  action,  if 
they  shall  see  cause,  and  that  you  certify  the  result  of 
the  trial  so  had  in  the  premises,  into  the  office  of  our  said 
Register, 
Attest, 

G.  H,  Register  of  wills  of  the  said  county;  and  the  f^^u^j^^'^'l" 
facts  established  by  the  trial  had  and  certified  to  the  Re-  trLf  nof  to  be 
gister  as  aforesaid,  shall  not  be  re-examined  by  the  said  re-examined, 
Register,  nor  upon  any  appeal  from  his  decision.  '^' 

Sect.  14.  Before  any  Register  shall  issue  letters  of  Oaths  of  exe- 
administration,  letters  testamentary,  or  of  administration,  cutoi-sand ad- 
with  a  will  annexed,  he  shall  administer  an  oath  or  affirma- 
tion to  the  person  or  persons  receiving  the  same,  in  the 
following  form,  viz:  You  do,  &c.  that  as  executor  of  the 
last  will  and  testament,  [or  as  administrator  of  the  estate 
of  A.  B.  deceased,  as  the  case  may  be,]  you  will  well  and 
truly  administer  the  goods  and  chattels,  rights  and  credits 
of  said  deceased,  according  to  law,  and  also  "  will  dili- 
gently and  faithfully  regard,  and  well  and  truly  comply 
with  the  provisions  of  the  law  relating  to  collateral  in- 
heritances." 

Sect.  15.  It  shall  be  the  duty  of  the  said  executors  and  Inventory  to 
administrators  to  make  a  true  and  perfect  inventory  of  all  ^^  exhibited 
the  goods,  chattels  and  credits  of  the  deceased,  as  far  as  days." 
they  may  know  or  can  ascertain  them,  and  exhibit  the 
same  into  the  Register's  office,  within  thirty  days  from 
the  time  of  administration  granted,  and  also  a  just  account 
and  settlement  thereof  in  one  year,  or  when  thereunto 
legally  required:  Provided,  That  in  the  case  of  the  will  Proviso. 
of  a  decedent,  not  resident  at  the  time  of  his  decease  Nonresidents 
within  this  commonwealth,  proved  in   another  state,  or  ceased  ° 
in  a  foreign  country,  whereof  letters  testamentary  or  of 
administration,  with  the  will  annexed,  may  be  granted  in 
this  state,  the  inventory  and  account  therein  mentioned, 
shall  be  of  the  goods,  chattels  and  credits  of  the  deceased 
within  this  commonwealth. 

Sect.  16.  Before  the  Register  shall  issue  letters  testa-  Registers  to 
mentary  to  any  executor,  not  being  an  inhabitant  of  this  take  bonds 
Commonwealth,  he  shall  take  from  him  a  bond,  with  two  tor" Residing 
or  more  sufficient  sureties,  being  inhabitants  of  this  com-  out  of  the 
monwcalth,  respect  being  had  to  the  value  of  the  estate  to  ^^^*'' 
be  administered,  in  the  name  of  the  Commonwealth,  with 


hv 


UEGISTRKS  AIVl)  REGISTERS'  COURTS. 


Conditions  of 
the  bond. 


Will, kc.  pro- 
ved, to  be  re- 
corded and" 
filed. 


Copies  there- 
of evidence. 


Letters  of  ad- 
ministration, 
8cc.  to  be 
gi-anted  when 
all  tlie  execu- 
tors refuse, 
kc. 


Also  when  a 
sole  or  survi- 
ving executor 
dies. 


the  following  condition,  viz:  "the  condition  of  the  obli- 
gation is,  that  if  the  said  A.  B.,  executor  of  the  last  will 
and  testament  of  C.  1).  deceased,  shall  make  a  true  and 
perfect  inventory  of  all  and  singular  the  goods,  chattels 
and  credits  of  the  said  deceased,  being  within  this  com- 
monwealth, which  have  come  or  shall  come  to  his  hands, 
possession  or  knowledge,  or  into  the  hands  and  possession 
of  any  other  jjcrson  for  him,  and  the  same  so  made  do 
exhibit  into  the  oflice  of  the  Register  of  the  county  of 

within  thirty  days  from  the  date  hereof,  and  the 
same  goods  do  well  and  truly  administer,  according  to 
law,  and  make  a  just  and  true  account  of  all  his  actings 
and  doings  therein,  in  one  year  from  the  date  hereof,  or 
when  thereunto  lawfully  required,  and  shall  well  and 
truly  comply  with  the  laws  of  this  commonwealth  rela- 
ting to  collateral  inheritances,  and  in  all  other  respects 
with  the  laws  of  this  commonwealth  relating  to  his  duty 
as  executor,  then  this  obligation  to  be  void,  otherwise  of 
force  and  effect. " 

Sect.  17.  All  original  wills,  after  probate,  and  the 
copies  of  all  original  wills  produced  under  the  provisions 
of  this  act,  shall  be  recorded  and  filed  by  the  Register  of 
the  respective  county,  and  shall  remain  in  his  olfice,  ex- 
cept when  required  to  be  had  before  some  higher  tribunal 
by  certiorari,  or  otherwise,  and  if  removed  for  such  cause 
they  shall  be  returned  in  due  course  to  the  office  where 
they  belong,  and  the  copies  of  all  such  and  of  the  pro- 
bates thereof,  under  the  public  seals  of  the  courts  or  offices 
where  the  same  may  have  been  or  shall  be  so  taken  or 
granted  respectively,  except  copies  or  probates  of  such 
wills  and  testaments  as  shall  appear  to  be  annulled,  dis- 
proved or  revoked,  shall  be  adjudged  and  are  hereby  en- 
acted to  be  matter  of  record,  and  good  evidence  to  prove 
the  gift  or  devise  thereby  made. 

Sect.  18.  Whenever  the  executors  named  in  any  last 
will  and  testament  shall  all  refuse  or  renounce  the  trust 
and  execution  thereof,  the  Register  having  jurisdiction  asi 
aforesaid,  may  receive  the  probate  of  such  will,  and  grant 
letters  of  administration  with  it  annexed,  to  the  person 
by  law  entitled  thereto. 

Sect.  19.  Whenever  a  sole  executor,  or  the  survivor 
of  several  executors,  .shall  die,  leaving  goods  or  estate  of 
his  testator  unadministered,  the  Register  having  jurisdic- 
tion shall,  notwithstanding  such  executor  may  have  made 
his  last  will  and  testament,  and  appointed  an  executor  or 
executors  thereof,  grant  letters  of  administration  of  all 
such  goods  and  estate,  in  the  same  manner  as  if  such  exe- 
cutor had  died  witliout  having  made  any  teslamcnt  or  last 


REGISTERS  AND  REGISTERS'  COURTS. 


Iv 


will,  and  the  executor  of  such  deceased  executor  shall  in 
no  case  be  deemed  executor  of  the  first  testator. 

Sect.  20.  In  all  cases  where  the  administration  of  the  ^i^^  ^^,i,^.„  y^^ 
estate  of  any  decedent  shall  become  vacant,  by  reason  of  administra- 
any  decree  of  the  Orphan's  Court,  the  Register  having  ;;°,",,';f[3°'^^'^^ 
jurisdiction  shall,  on  being  certified  thereof,  under  the  decree  of  the 
seal  of  the  said  court,  grant  new  letters,  in  such  form  as  O-  C 
the- case  shall  require,  to  the  person  or  persons  by  law 
entitled  thereto. 

Sect.  21.  No  letters  of  administration  shall  in  any  Not  to  be. 
case  be  originally  granted  upon  the  estate  of  any  dece-  fryearsVom 
dent,  after  the  expiration  of  twenty-one  years  from  the  decedent's 
day  of  his  decease,  except  on  the  order  of  the  Register's  ^pon  causl^* 
court,  upon  due  cause  shown.  shown. 

Sect.  22.  Whenever  letters  of  administration  are  by  shall  be 
law  necessary,  the  Register  having  jurisdiction  shall  grant  granted  to  the 
them,  in  such  form  as  the  case  shall  require,  to  the  widow, 
if  any,  of  the  decedent,  or  to  such  of  his  relations  or  kin-  Or  kindred  of 
dred  as  by  law  may  be  entitled  to  the  residue  of  his  per-  ^lloi-To'^S'. 
sonal  estate,  or  to  a  share  or  shares  therein  after  payment 
of  his  debts,  or  he  may  join  with  the  widow  in  the  ad- 
ministration such  relation  or  kindred,  or  such  one  or 
more  of  them,  as  he  shall  judge  will  best  administer  the 
estate,  preferring  always,  of  those  so  entitled,  such  as  are 
in  the  nearest  degree  of  consanguinity  with  the  decedent, 
and  also  preferring  males  to  females;  and  in  case  of  the 
refusal  or  incompetency  of  every  such  person,  to  one  or 
more  of  the  principal  creditors  of  the  decedent  applying  q^,  ^o  credi- 
therefor,  or  to  any  fit  person  at  his  direction:  Provided,  tors,  &c. 
That  if  such  decedent  were  a  married  woman,  her  bus-  Or  to  the  hus- 
band shall  be  entitled  to  the  administration  in  preference  ^'i'^'^- 
to  all  other  persons:  ,/2nd p7'ovided  further,  That  in  all 
cases  of  an  administration  with  a  will  annexedy  where 
there  is  a  general  residue  of  the  estate  bequeathed,  the  Oi"  it^gatees  oi 
right  to  administer  shall  belong  to  those  having  the  right  ^^'^^^  '^^' 
to  such  residue,  and  the  administration  in  such  case  shall 
be  granted  by  the  Register  to  such  one  or  more  of  them 
as  he  shall  judge  will  best  administer  the  estate^ 

Sect.  23.  Whenever  all  the  executors  named  in  any  provision  for 
last  will  and  testament,  or  all  the  persons  entitled  as  kin-  cases  where 
dred  to  the  administration  of  any  decedent's  estate,  shall  n^i^ors"' ^ ''^ 
happen  to  be  under  the  age  of  twenty -one  years,  it  sball 
be  lawful  for  the  Register  to  grant  administration  as  afore- 
said to  any  other  fit  person  or  persons,  subject  neverthe- 
less to  be  terminated  at  the  instance  of  any  of  the  said 
minors  who  shall  have  arrived  at  the  full  age  of  twenty- 
one  years.  Registers  to 

Sect.  24.  It  shall  be  the  duty  of  every  Register  upon  [{!j^|;//^j,\','i';^i3. 
his  granting  any  letters  of  administration  of  the  goods  and  iiators. 


Ivi 


REGISTERS  AND  REGISTERS'  COURTS. 


Form  of  tlie 
condition. 


Proviso. 
May  be  alter- 
ed in  special 
cases. 


Registers  to 
call  a  Kcgis- 
ter's  court. 


For  the  deci- 
sion of  diffi- 
cult matters. 


chattels  of  any  person  cl)nng  intestate,  to  take  a  bond  or 
bonds  from  the  person  or  i)ersons  receiving  such  letters, 
with  two  or  more  sufficient  sureties,  respect  being  had  to 
the  value  of  the  estate,  in  the  name  of  the  commonwealth, 
with  a  condition  in  the  following  form,  viz:  "the  condi- 
tion of  this  obligation  is,  that  if  the  above  bounden  A.  B., 
administrator  of  all  and  singular  the  goods,  chattels  and 
credits  of  C.  D.  deceased,  do  make  or  cause  to  be  made,  a 
true  and  perfect  inventory  of  all  and  singular  the  goods, 
chattels  and  credits  of  the  said  deceased,  which  have 
come  or  shall  come  to  the  hands,  possession  or  knowledge 
of  him  the  said  A.  B,,  or  into  the  hands  and  possession  of 
any  other  person  or  persons  for  him,  and  the  same  so  made, 
do  exhibit,  or  cause  to  be  exhibited,  into  the  Register's  of- 
fice, in  the  county  of  within  thirty  days  from  the  date 
hereof,  and  the  same  goods,  chattels  and  credits,  and  all 
other  the  goods,  chattels  and  credits  of  the  said  deceased, 
at  the  time  of  his  death,  which  at  any  time  after  shall  come 
to  the  hands  or  possession  of  the  said  A.  B.,  or  into  the 
hands  and  possession  of  any  other  person  or  persons  for 
him,  do  well  and  truly  administer  according  to  law,  and 
further  do  make,  or  cause  to  be  made,  a  just  and  true  ac- 
count of  his  said  administration,  within  one  year  from 
the  date  hereof,  or  when  thereunto  legally  required,  and 
all  the  rest  and  residue  of  the  said  goods,  chattels  and 
credits  which  shall  be  found  remaining  upon  the  said  ad- 
ministrator's account,  the  same  being  first  examined  and 
allowed  by  the  Orphan's  Court  of  the  county  having  juris- 
diction, shall  deliver  and  pay  unto  such  person  or  per- 
sons as  the  said  Orphan's  Court,  by  their  decree  or  sen- 
tence, pursuant  to  law,  shall  limit  and  appoint,  and  shall 
well  and  truly  comply  with  the  laws  of  this  common- 
wealth relating  to  collateral  inheritances,  and  if  it  shall 
hereafter  appear  that  any  last  will  and  testament  was 
made  by  the  said  deceased,  and  the  same  shall  be  proved 
according  to  law,  if  the  said  A.  B.  being  thereunto  re- 
quired, do  surrender  the  said  letters  of  administration 
into  the  Register's  office  aforesaid,  then  this  obligation  to 
be  void  otherwise  to  remain  in  full  force:"  Provided, 
That  in  every  case  of  special  administration,  the  form  of 
the  foregoing  condition  shall  be  modified  so  as  to  suit  the 
circumstances  of  such  case. 

Sect.  25.  Where  objections  are  made,  or  a  caveat  is 
entered  against  the  probate  of  any  last  will  and  testament, 
and  no  precept  for  an  issue  is  directed  by  the  Register, 
into  the  Common  Pleas,  as  aforesaid;  or  where  objections 
are  made  to  the  granting  of  letters  of  administration  to 
any  person  applying  therefor;  or  where  any  question  of 
kindred,  or  other  disputable  and  difficult  matter  comes 


REGISTERS  AND  REGISTERS'  COURTS. 


Ivii 


into  controversy,  before  any  Register,  he  shall,  at  the  re- 
quest of  any  person  interested,  appoint  a  Register's  Court 
for  the  decision  thereof,  to  be  held  at  a  time  certain,  and 
as  soon  as  convenient,  at  the  court-house  or  other  public 
place  in  the  respective  county,  giving  convenient  notice  And  give  no- 
of  the  time  and  place  of  holding  the  same,  by  citation,  or  tice  thereof  to 
otherwise,  to  all  concerned,  as  well  to  the  persons  nite- 
rested,  as  to  the  judges  whose  assistance  he  shall  require, 
and  in  the  mean  time  he  shall  do  and  receive  all  proper 
acts  preparatory  to  the  business  of  such  court. 

Sect.  26.  Every  executor  or  administrator  shall  cause  Of  appraisers, 
a  just  appraisement  to  be  made  of  the  goods,  chattels  and 
credits  of  the  decedent  by  two  appraisers,  of  which  an  in- 
ventory is  to  be  made,  agreeably  to  the  preceding  sec- 
tions of  this  act,  and  the  said  appraisers  shall  be  sworn  or 
affirmed  well  and  truly,  and  without  prejudice  or  par- 
tiality, to  value  and  appraise  said  goods,  chattels  and 
credits,  and  in  all  respects  to  perform  their  duty  as  ap- 
praisers, to  the  best  of  their  skill  and  judgment. 

Sect.  27.  If  any  Register  shall  grant  letters  testamen-  Register 
tary  to  any  person  not  being  an  inhabitant  of  this  com-  fgj!'"'^|  '^*' 
mon wealth,  or  shall  grant  any  letters  of  administration  to  without  bond, 
any  person  or  persons  whatsoever,  without  having  in  liable, 
either  case  taken  a  bond  and  sureties  in  the  manner  here- 
inbefore prescribed,  such  letters  shall  be  void,  and  every  Letters  so 
person  acting  under  them  shall  be  deemed,  and  may  be  granted  void, 
sued,  and  in  all  res]3ects  treated  as  an  executor  of  his  own 
wrong,  and  the  Register  granting  the  same,  and  his  sure- 
ties, shall  be  liable  to  pay  all  damages  which  shall  accrue 
to  any  person  by  reason  thereof.    '       ■  '       . 

Sect.  28.  All  bonds  taken  by  any  Register  in  pursu-  Bonds  taken 
ance  of  this  act  from  any  executor  or  administrator  may  by  Registers 
be  excepted  to  before  such  Register  by  any  person  in^  ^pted^or' 
terested,  both  in  respectof  the  sufficiency  of  the  sureties 
therein,  and  of  the  sum  in  which  they  may  be  bound. 

And  whenever  any  such  exception  shall  be  so  made  to 
any  such  bond,  the  Register  shall  give  notice  thereof  to  Registers  to 
the  executor  or  administrator,  and  require  him  to  appear  fheVxceptb".. 
before  him  in  a  reasonable  time,  not  exceeding  ten  days, 
and  show  cause  against  the  allowance  of  such  exception, 
and  if  upon  the  hearing  of  the  objections  of  all  persons 
interested,  and  of  such  executor  or  administrator,  or  of  • 
such  of  them  as  shall  appear,  such  Register  shall  see  cause, 
he  shall  order  such  executor  or  administrator  to  fmd  ad- 
ditional sureties,  or  to  give  security  in  a  larger  amount, 
as  the  case  may  require,  and  if  such  executor  or  adminis- 
trator shall  refuse  to  comply  with  such  order,  or  if  he 
shall  neglect  so  to  do  during  the  space  of  tliirty  days  after  ,^,!'J,^?!"*]^^y. 
the  making  thereof,  the  Register,  shall  revoke  the  letters  i-ny. 
H 


Iviii 


REGISTERS  AND  REGISTERS'  COURTS. 


And  may  re- 
voke letters  if 
uot  given. 


Accounts  to 
be  vouched 
before  allow- 
ance by  the 
Register. 


Notice  of 
filing  to  be 
published  by 
tlie  Register. 


Manner  of 
publication. 


Costs  thereof 
to  be  divided 
among  all  the 
accounts. 


Appeals  from 
the  Register. 


granted  to  him,  and  grant. other  letters,  in  such  form  as 
the  case  shall  require,  to  the  person  by  law  next  entitled 
thereto,  they  giving  to  such  Register  tl>e  security  -by  him 
ordered  as  aforesaid:  Provided,  That  no  such  exception 
shall  be  so  made,  or  proceedings  thereunto  be  had  before 
the  Register,  after  one  year  elapsed  from  the  time  of  the 
filing,  of  a  full  and  perfect  inventory  by  such  executor  or' 
administrator  of  the  whole  of  the  estate  in  question. 

Sect.  29.  Every  Register,  before  he  shall  allow  the 
accounts  of  any  executor  or  administrator,  shall  carefully 
examine  the  same,  and  require  the  production  of  the  ne- 
cessary vouchers,  or  other  satisfactory  evidence  of  the 
several  items  contained  in  it. 

Sect.  30.  Every  Register  having  allowed  and  filed 
any  account  in  his  office,  shall  prepare  and  present  a  cer- 
tified copy  thereof  to  the  Orphans'  Court  of  the  respective 
county,  at  its  next  stated  meeting,  being  not  less  than 
thirty  days  distant  from  the  time  of  such  filing  and  allow- 
ance, of  all  which  he  shall  give  notice  to  all  persons  con- 
cerned, in  the  following  manner,  viz?  by  an  advertise- 
ment enumerating  all  the  accounts  to  be  presented  at  any 
one  time  to  the  said  court,  in  at  least  two  newspapers  (if 
there  be  two,)  published  in  the  respective  county,  or  if 
there  be  but  one  newspaper  published  in  such  county, 
then  in  that  one,  or  if  there  be  none,  then  in  one  printed 
nearest  to  the  said  county,  at  least  once  a  week  during 
the  four  weeks  immediately  preceding  the  meeting  of  the 
court  at  which  such  account  shall  be  presented,  setting 
forth  in  substance  that  the  accountants,  (naming  them  and 
the  character  in  which  they  respectively  act,)  have  set- 
tled their  accounts  in  the  office  of  the  said  Register,  and 
that  the  same  will  be  presented  to  the  Orphans'  Court  for 
confirmation,  at  a  certain  tin;>e  and  place,  (mentioning  the 
same,)  and  also  by  setting  up  conspicuously  iii  his  office, 
and  in  at  least  six  other  of  the  most  public  places  in  the 
county,  at  least  four  weeks  before  the  time  appointed  for 
the  presentation  of  such  accounts  as  aforesaid,  fairly  writ- 
ten or  printed  copies  of  such  advertisements;  and  the 
actual  expense  of  such  advertisement,  according  to  the 
usual  rates  of  advertising  in  such  newspapers,  and  of  the 
setting  up  of  such  notices,  shall  be  divided  among  all  the 
accounts  presented  at  the  same  court,  and  the  proper  pro- 
portion thereof  only  shall  be  charged  in  any  of  the  said 
accounts,  and  allowed  to  the  Register  as  the  cost  of  such 
advertisement  and  notices; 

Sect.  31,  From  all  the  judicial  acts  and  decisions  of 
the  several  Registers,  appeals  may  be  taken  to  a  Regis- 
ter's Court  of  the  respective  county,  to  be  appointed  and 
called  by  the  respective  Register  in  the  manner  prescribed 


REGISTERS  AND  REGISTERS'  COURTS.  llX 

by  this  act:  Provided,  That  such  appeals  be  made  within  Proviso. 
the  term  of  three  years. 

Sect.  32.  It  shall  be  the  duty  of  every  Register  to  ^^^^^^  ^°^ 
make  and  certify,  under  the  seal  of  his  office,  true  copies  "rproceed-' 
of  all  bonds,  inventories,  accounts,  actings  and  proceed-  ingsinhis 
ings  whatsoever,  remaining  in  his  office,  being  thereunto  °*'^*=^' 
required  by  any  person  having  an  interest  therein,  and 
to  deliver  the  same  within  a  reasonable  time  to  such  per- 
son applying  therefor,  on  receiving  the  fee  allowed  to  Y&e%.     ' 
him  by  law  for  such  copy  or  copies,  and  if  any  Register 
shall  refuse,  after  the  tender  of  his  lawful  fees,  to  make  Refusal  a  mis- 
er deliver  such  copy  or  copies  as  aforesaid,  he  shall  be  demeanor, 
deemed  guilty  of  a  misdemeanor  in  office. 

Sect.  33.  Whenever  any  receipt  given  by  the  trea- To  transmit 
surer  of  any  county  for  moneys  paid  to  him  by  any  exe-  county*tr°easu- 
cutor  or  administrator  for  the  use  of  the  commonwealth,  rertotheau- 
under  the  provisions  of  the  laws  relating  to  collateral  in-  ditor  general, 
heritances,  shall  be  lodged  by  such  executor  or  adminis- 
trator with  the  Register  having  jurisdiction  of  his  account, 
such  Register  shall  without  delay  record  such  receipt,  and 
immediately  thereupon  transmit  the  same  to  the  Auditor 
General  of  this  commonwealth. 

Sect.  34.  Every  Register  shall  annually,  in  the  month  To  account 
of  September,  account  for,  under  oath  or  affirmation,  to  annuaily'afl 
the  Auditor  General,  and  pay  into  the  treasury  of  the  moneys  re- 
commonwealth,  all  moneys  which  may  have  been  received  ^qJ^^^j^J"  *^^ 
by  him  for  the  use  of  the  commonwealth  during  the  year  wealth, 
immediately  preceding  the  first  day  of  the  said  month, 
deducting  therefrom  such  sum  only  as  shall  be  allowed 
to  him  by  law  for  receiving  and  paying  the  same. 

Sect.  35.  Every  Register  shall  annually,  in  the  month  "To  settle  an 

rf*  •  Recount  01 

of  October,  render  an  account,  under  oath  or  affirmation,  f^gg  annually, 
to  the  Auditor  General,  of  all  fees  which  shall  have  been  and  pay,  &c. 
received  by  him,  or  by  any  person  employed  by  him  for 
official  acts  and  services  performed  in  his  office,  and  when- 
ever the  amount  thereof,  as  allowed  by  the  Auditor  Ge- 
neral, shall  exceed  the  sum  of  fifteen  hundred  dollars,  he 
shall  pay  one  half  of  the  excess  into  the  treasury  of  the 
commonwealth. 

Sect.  36.  On  the  probate  of  any  will,  and  the  granting  To  demand 
of  letters  testamentary  thereon,  also  on  the  grantmg  ot  ^^^^^^  p^^_ 
any  letters  of  administration,  every  Register  shall  demand  ceedings. 
and  receive  for  the  use  of  the  commonwealth  in  each 
case,  the  sum  of  fifty  cents. 

Sect.  37.   The  fees  to  be  received  by  the  several  Re-  Fees  of  the 
gisters  shall  be  as  follows,  viz:  For  the  probate  of  a  will     <^g'^^"- 
and  letters  testamentary  thereon,  one  dollar;  for  register- 
ing the  same,  for  every  ten  words  one  cent;  for  letters  o( 
administration  seventy-five  cents;  for  bonds  taken  of  exe- 


Ix 


REGISTERS  AND  REGISTERS'  COURTS. 


Proviso. 


How  collect- 
ed. 


Register's 
Court  how 
constituted. 


cutors  or  administrators  one  dollar  and  fifty  cents;  for 
filing  and  entering  the  renunciation  of  an  executor  or  ad- 
ministrator, fifty  cents;  for  annexing  a  will,  for  every  ten 
words,  one  cent;  for  issuing  a  citation  or  attachment  with 
seal,  fifty  cents;  for  entering  a  caveat,  twenty-five  cents; 
for  issuing  a  commission  to  take  the  testimony  of  wit- 
nesses, seventy-five  cents;  for  issuing  a  precept  for  an 
issue,  thirty-seven  and  a  half  cents;  for  administering  an 
oath  or  affirmation,  six  cents.;  for  filing  a  list  of  articles 
appraised,  twenty-five  cents;  for  filing  a  list  of  articles 
sold  at  vendue,  twenty-five  cents;  for  examining,  passing 
and  filing  the  account  of  an  executor  or  administrator, 
two  dollars  and  fifty  cents ;  for  advertising  executor's 
or  administrator's  accounts,  two  dollars;  for  advertising 
guardian's  accounts,  one  dollar;  for  every  copy  if  de- 
manded, of  such  accoui>t,  not  exceeding  seventy-five 
items,  with  certificate  and  seal,  one  dollar,  and  for  every 
additional  item  one  cent;  for  entering  exceptions  to  an 
executor's  or  administrator's  bond,  and  hearing  the  same, 
fifty  cents;  for  holding  Register's  Court,  per  day,  two  dol- 
lars; for  every  search  where  no  other  service  is.performed 
for  which  fees  are  allowed,  twelve  and  a  half  cents;  for 
certificate  and  seal  fifty  cents;  for  the  copy  of  any  bond 
filed  in  his  office,  fifty  cents;  for  commissions  on  taxes 
received  by  him  for  the  use  of  the  commonwealth,  on 
proceedings  in  his  office,  three  cents  on  every  dollar: 
Provided,  That  in  all  cases  where  the  value  of  the  whole' 
estate  of  the  decedent  shall  not  exceed  the  sum  of  two 
hundred  and  fifty  dollars,  the  Register  shall  receive  in 
lieu  of  all  fees  for  official  acts  hereinbefore  specified,  to 
be  performed  after  the  letters  testamentary  or  of  admin- 
istration have  been  granted,  the  sum  of  two  dollars,  and 
no  more. 

Sect.  38,  Whenever  any  proceedings  before  a  Regis- 
ter or  Register's  Court  shall  be  wholly  ended,  and  the 
fees  and  costs  accrued  thereon  shall  remain  during  the 
space  of  thirty  days  thereafter  due  and  unpaid,  such 
Register  may  file  a  bill  thereof,  under  his  hand  and  the 
seal  of  his  office,  in  the  Court  of  Common  Pleas  of  the 
county,  and  upon  the  docketing  thereof,  an  execution 
may  be  issued,  in  the  name  of  the  commonwealth,  to  levy 
the  amount  of  the  said  bill,  in  like  nianner  as  executions 
may  issue  to  levy  costs  accrued  in  the  courts  of  common 
law,  and  subject  in  like  manner  to  control  and  taxation 
by  the  said  court. 

Sect.  39.  The  Register  of  Wills  and  the  judges  of  the 
Court  of  Common  Pleas  of  any  county,  or  any  two  of  the 
said  judges,  shall  compose  and  hold,  from  time  to  time, 
as  occasion  may  require,  the.  Register's  Court  of  such 


REGISTERS  AND  REGISTERS'  COURTS. 


Lxi 


county,  and  when  convened  according  to  law,  shall  have 

all  and  suigular  the  powers  and  jurisdictions  belonging  to  Its  jui-isdic- 

such  courts,  and  may  and  shall  do  all  such  judicial  acts  in  '^'°''- 

all  matters  lawfully  brought  before  them,  as  belong  and 

of  right  ought  to  belong  to  the  office  of  said  Register,  and 

it  shall  be  the  duty  of  said  Register  to  keep  a  record  of  ^'"^  records. 

the  proceedings  of  such  courts,  in  a  book  to  be  provided 

by  him  for  the  purpose,  with  a  sufficient  index  thereto, 

which  book  shall  remain  in  the  Register's  office. 

Sect.  40.   The  testimony  of  all  witnesses  examined  in  Testimony 
any  cause  litigated  before  any  Register's  Court,  shall  be  therein  to  be 
taken  in  writing,  and  made  a  part  of  the  proceedings  ^i^^. 
therein,  upon  which  testimony  the  court  having  jurisdic- 
tion of  such  cause  by  appeal  may  affirm,  reverse,  alter  or 
modify  the  decree  of  the  Register's  Court. 

Sect.  41.  Whenever  a  dispute  upon  a  matter  of  fact  t  \  h 

arises  before  any  Register's  Court  the  said  court  shall,  at  issued  for  the 
the  request  of  either  party,  direct  a  precept  for  an  issue  trial  of  facts 
to  the  Court  of  Common  Pleas  of  the  county  for  the  trial  '"  ^i^P*^^^- 
thereof,  in  the  form  hereinbefore  prescribed  for  the  direc- 
tion of  Registers,  changing  such  parts  thereof  as  should 
be  changed,  according  to  the  circumstances  of  the  case; 
and  the  facts  established  by  the  verdict  returned  shall  not 
be  re-examined  on  any  appeal. 

Sect.  42.  Any  party  aggrieved  by  the  final  sentence 
or  decree  of  any  Register's  Court,  or  his  legal  representa- 
tives, in  any  case  where  the  sum  mentioned  in  such  sen- 
tence or  decree,  or  the  sum  or  matter  in  controversy  shall 
exceed  one  hundred  and  fifty  dollars  in  value,  may  ap-  Appeals  from 
peal  therefrom  to  the  Supreme  Court,  but  no  appeal  from  ^^}^  Register's 
any  decree  of  such  court,  concerning  the  validity  of  a  Supreme 
will,  or  the  right  to  administer,  shall  suspend  the  power  Court. 
or  prejudice  the  acts  of  any  administrator,  nor,^  of  any 
executor  who  shall  have  given  sufficient  security  to  the 
Register  for  the  faithful  administration  of  his  trust;  and 
in  case  of  the  refusal  of  such  executor  to  give  such  se- 
curity, the  said  Register  shall  grant  letters  of  administra- 
tion during  the  dispute,  which  shall  suspend  the  power 
of  such  executor  during  that  time:  Provided  always,  Proviso. 
That  such  appeal  be  made  within  the  term  of  one  year 
from  the  time  of  pronouncing  such  final    sentence  or 
decree. 

Sect.  43.   No  immaterial  variation  from   the   forms  Slight  dlscre- 
given  and  prescribed  in  and  by  this  act  shall  vitiate  or  P^ncies  not  to 
render  void  any  proceedings  in  which  said  forms  shall  Leding's?" 
be  used.  tj     ,  *  i 

o  ^  ^      T-<  1      r  1  r     1  •  n  i>o"ds  to  be 

bECT.  44.  trom  and  alter  the  passage  ot  this  act  all  given  and  held 
bonds  given  or  hereafter  to  be  given,  by  executors,  ad-  "J}^'^''  the  act 
ministrators  and  guardians,  shall  he  held  in  trust  for  the  igos.    ^^'^  ' 


Ixii  REGISTERS  AND  REGISTERS'  COURTS, 

use  of  the  commonwealth,  and  such  person  or  persons  as 
may  be  interested  therein,  and  suits  may  be  brought 
thereon  from  time  to  time,  by  all  persons  interested 
therein,  in  the  same  manner  and  with  like  effect  as  is 
now  allowed  in  the  case  of  sheriff's  bonds,  by  the  fourth 
section  of  the  act,  entitled  "An  act  directing  sheriffs  and 
coroners  to  give  sufficient  sureties  for  the  faithful  execu- 
tion of  their  official  duties,  and  for  other  purposes,"  pass- 
ed the  twenty-eighth  day  of  March,  eighteen  hundred 
and  three. 
Time  of  ope-  Sect.  45.  This  act  shall  take  effect  on  the  first  Mon- 
ration  jgy  Qf  August  ncxt,  and  so  much  of  any  law  as  is  hereby 

clause.  altered  or  supplied,  is  hereby  repealed  from  that  period. 

JOHN  LAPORTE, 
Speaker  of  the  House  of  Representatives. 

WM.-G.  HAWKINS, 

Speaker  of  the  Senate. 

Approved — The  fifteenth  day  of  March,  Anno  Domini, 
eighteen  hundred  and  thirty-two. 

GEO.  WOLF. 


AN  ACT 

RELATING  TO  ORPHANS'  COURTS. 


Sect.  1.  It  is  enacted  hy  the  Senate  and  House  of 
Representatives  of  the  Commonwealth  of  Pennsylva- 
nia, in  General  Assembly  met.  That  the  judges  of  the  court  consti- 
Court  of  Common  Pleas  of  each  county,  or  any  two  of  tuted. 
them,  shall  compose  the  Orphans'  Court  of  such  county: 
Provided,  That  in  case  of  the  absence  of  the  president,  if  Proviso, 
any  person  interested  in  the  business  before  the  court  ^^^^^^^^^1 
shall  request  the  same  to  be  continued  until  the  president 
shall  attend,  such  business  shall  be  continued  accordingly. 

Sect.  2,  The  Orphans'  Court  is  hereby  declared  to  be  Declared  to 
a  Court  of  Record,  with  all  the  qualities  and  incidents  of  ^^^^^Court  of 
a  Court  of  Record  at  common  law;  its  proceedings  and 
decrees,  in  all  matters  within  its  jurisdiction,  shall  not  be  Conclusive- 
reversed  or  avoided  collaterally  in  any  other  court,  but  ^^^^o*" '*' '^^" 
they  shall  be  liable  to  reversal,  modification,  or  alteration, 
on  appeal  to  the  Supreme  Court,  as  hereinafter  directed. 

Sect.  3.  The  Orphans'  Court  of  the  city  and  county  Periods  of 
of  Philadelphia,  shall  be  held  during  every  term  of  the  Jj°J^^{^Sthe 
Court  of  Coinmon  Pleas  of  the  said  city  and  county,  at  ''°"* 
such  times  and  as  often  as  the  judges  thereof  shall  think 
necessary  or  proper;  and  the  Orphans'  Court  of  every 
othter  county  of  this  commonwealth,  shall  beheld  during 
the  first  week  of  each  term  of  the  Court  of  Common  Pleas 
of  the  respective  county,  and  at  such  other  times  as  the 
judges  thereof  shall  think  necessary  or  proper. 

Sect.  4.  The  jurisdiction  of  the  several  Orphans' Courts  jurisdiction 
of  this  commonwealth  shall  extend  to  and  embrace  the  of  court, 
appointment,  control,  removal  and  discharge  of  guardians, 
the  settlement  of  their  .accounts,  the  removal  and  dis- 
charge of  executors  and  administrators  deriving  their 
authority  from  the  Register  of  the  respective  county,  the 
settlement  of  the  accounts  of  such  executors  and  adminis- 
trators, and  the  distribution  of  the  assetts  or  surplusage  of 
the  estates  of  decedents,  after  such' settlements  among 
creditors  or  others  interested  in  the  sale  or  partition  ol 


Ixiv 


OKPHANS'  COURTS. 


Care  of  mi- 
nors anil  aj)- 
])oiiitmc'nl  of 
guardians. 


Executors  or 
administra- 
tors ma.v  not 
be  a])pointed 
guardians, 


No  foreig^n 
!»uardian  to 
havcaulliority 
in  this  state. 


Guardians  to 
•rive  sccm-itv. 


Form  of  hoiid 


the  real  estate  of  decedents  among  the  heirs,  and  generally 
to  all  cases  within  their  respective  counties,  wherein  exe- 
cutors, administrators,  guardians  or  trustees  are  or  may 
he  possessed  of,  or  undertake  the  care  and  management 
of,  or  are  in  any  way  accoiuitable  for  any  real  or  personal 
estate  of  a  decedent,  and  s\ich  jurisdictions  shall  be  exer- 
cised in  the  manner  hereinafter  provided. 

Sect.  5.  The  Orphans'  Court  of  each  county  shall  have 
the  care  of  the  persons  of  minors  resident  within  such 
county,  and  of  their  estates,  and  shall  have  power  to  ad- 
mit such  minors  when  and  as  often  as  there  shall  be  oc- 
casion to  make  choice  of  guardians,  and  to  appoint  guar- 
dians for  such  as  they  shall  judge  too  young  or  otherwise 
incompetent  to  make  choice  for  themselves:  Provided, 
That  persons  of  the  same  religious  persuasion  as  the 
parents  of  the  minors  shall,  in  all  cases,  be  preferred  by 
the  court  in  their  appointment,  and  such  appointment  or 
admission  of  a  guardian  by  the  Orphans'  Court  of  the 
county  in  which  the  minor  resides  shall  have  the  like 
effect  in  every  other  county  of  this  commonwealth  as  in 
that  by  the  Orphans'  Court  of  which  he  shall  have  been 
so  admitted  or  appointed. 

Sect.  6.  No  executor  or  administrator  shall  he  admit- 
ted or  appointed  by  the  Orphans'  Court  guardian  of  a 
minor,  having  an  interest  in  the  estate  under  the  care  of 
such  executor  or  administrator:  Provided,  That  nothing 
herein  contained  shall  be  constfued  to  extend  to  the  case 
of  a  testamentary  guardian. 

Sect.  7.  No  appointment  of  a  guardian,  made  or 
granted  by  any  authority  out  of  this  state,  shall  authorize 
the  person  so  appointed  to  interfere  with  the  estate,  or 
control  the  person  of  a  minor  in  this  state:  Provided, 
That  such  foreign  guardian  may,  at  the  discretion  of  the 
court,  be  appointed  by  the  Orphans'  Court  having  juris- 
diction, on  giving  security  for  the  due  performance  of  his 
trust. 

Sect.  8.  The  Orphans'  Court,  having  jurisdiction, 
whenever  they  may  deem  it  proper,  may  require  a-  bond 
with  good  and  sufficient  security,  from  every  guardian  of 
a  minor,  whether  admitted  or  appointed  by  the  court,  or 
created  by  will,  which  bond  shall  be  fded  in  the  office  of 
the  cferk'of  the  court,  and  be  considered  in  trust  for  all 
persons  interested;  the  bonds  shall  be  taken  to  the  com- 
monwealth in  such  penalties  as  the  court  shall  direct,  and 
the  condition  shall  be  in  the  following  form:  "  The  con- 
dition of  this  obligation  is  such,  that  if  the  above  bounden 
A.  E.,  guardian  of  C.  D.,  a  minor  child  of  E.  F.,  late  of 
deceased,  shall,  at  least  once  in  every 
three' years,  and  at  any  other  time  when  required  by  the 


ORPHANS'  COURTS. 


Ixv 


Orphans'  Court  for  the  county  of  render 

a  just  and  true  account  of  the  management  of  the  property 
and  estate  of  the  said  minor,  under  his  care,  and  shall 
also  deliver  up  the  said  property,  agreeahly  to  the  order 
and  decree  of  the  said  court,  or  the  directions  of  law,  and 
shall,  in  all  respects,  faithfully  perform  the  duties  of  guar- 
dian of  the  said  C.  D.,  then  the  above  obligation  shall  be 
void,  otherwise  it  shall  be  and  ^remain  in  full  force  and 
virtue:"  Provided,  That  nothing  in  this  act  contained 
shall  be  construed  to  deprive  a  minor  of  any-  action  or 
remedy  to  which  he  may  be  entitled  at  the  common  law 
against  his  guardian,  for  any  cause  whatever. 

Sect.  9.  Every  such  guardian  shall,- within  thirty  days  Guardians  to 
after  any  property  of  his  ward  shall  have  come  into  his  f^'e^.^n  inven- 
hauds  or  possession,  or  into  the  hands  and  possession  of      '' 
any  person  for  him,  file  in  the  office  of  the  clerk  of  the 
court  a  just  and  true  inventory  and  statement  on  oath  or 
affirmation  of  all  such  property  or  estate. 

Sect.  10.  Every  such  guardian,  whether  required  by  Guardians  to 
the  court  to  give  security  or  not,  shall,  at  least,  once  in  ^^^^^3/''" 
every  three  years,  and  at  any  other  time  when  so  re- 
quired by  the  court,  render  an  account  of  the  manage- 
ment of  the  minor's  property,  under  his  care,  which  ac- 
counts shall  be  filed  in  the  office  of  the  clerk  of  the 
Orphans'  Court  for  the  information  of  the  court  and  the 
inspection  of  all  parties  concerned;  and  every  such  guar- 
dian, unless  previously  discharged  or  removed,  shall,  on 
the  arrival  of  his  ward  at  full  age,  settle  in  the  Register's 
office  a  full  and  complete  account  of  his  management  of 
the  minor's  property  under  his  care,  including  all  the 
items  embraced  in  each  partial  settlement,  and  the  decree 
of  the  Orphans'  Court  upon  such  final  accounts  shall,  like 
other  decrees  of  the  court,  be  conclusive,  upon  all  par- 
ties, unless  reversed,  modified  or  altered,  on  appeal. 

Sect.  11.  The  Orphans'  Court  shall  have  power,  upon  Guardians 
the  petition  of  any  such  guardian,  to  discharge  him  from  "J^'^.J'g'jj'^'"' 
the  duties  of  his  appointment:  Provided,  That  no  guar-  ^^^^-^^^ 
dian  shall  be  discharged  from  his  liability  for  the  estate 
of  his  ward,  until  he  shall  have  rendered  to  the  court  an  Final  setUe- 
account  of  the  management  of  his  trust,  nor  until  the  "^'^" ' 
same  shall  have  been  submitted  to  competent  persons  as 
auditors,  for  examination,  and  their  report  thereon  be 
confirmed  by  the  court,  unless  such  account  shall  have 
been  examined  by  the  said  court  and  the  appointment  of 
auditors  be  found  necessary;  nor  until  such  guardian  shall 
have  surrendered  the  residue  of  the  estate  standing  upon    . 
his  account,  settled  and  confirmed  as^aforesaid,  to  a  sub- 
sequent guardian  of  such  ward  or  to  such  other  person  as 
the  court  shall  appoint  to  receive  such  estate.     Jindpro- 
1 


Ixvi  ORPHANS'  COURTS. 

'2,1  proviso.  vidcd  further,  That  in  every  such  case  it  shall  be  the 

rouit  ti.  :tii-  duty  of  the  court  to  appoint  some  suitable  person  to  ap- 

trapV'tai'i'oi-  p(^«i'  'A^^^  '^^t  for  tlie  ward,  in  respect  to  the  settlement  of 

ward.  such  account. 

Power  of  Sect.  12,  The  Orphans'  Court  shall  have  power  to  re- 
court  to  move  any  guardian,  whether  testamentary  or  otherwise, 

remove  guar-  JO'.  ^     r  xi  •         >         >.  *. 

dians.  on  due  proof  of  his  mismanagement  ot  the  minor  s  estate, 

or  misconducting  himself  .in  respect  to  the  maintenance, 
education,  or  moral  interests  of  the  minor;  in  any  such 
case  the  court  shall  have  power  to  order  the  offending 
guardian  to  deliver  up,  assign,  transfer  and  pay  over  to 
the  successor  in  the  guardianship,  or  to  such  persons  as 
the  court  shall  appoint,  all  and  every  the  goods,  chattels, 
rights,  credits,  title,  deeds,  evidences,  and  securities  what- 
soever, belonging  to  the  minor,  and  in  the  hands  or  un- 
der the  power  of  the  guardians,  and  to  make  such  other 
order  and  decree,  touching  the  premises,  as  the  interest 
of  the  minor  may  require. 
The  Orphans'       Sect.  13.  When  any  one  shall  die,  leaving  an  infant 
Cnmt  may       child  Or  children,  without  having  made  an  adequate  pro- 
nant^c  of'an     vision  for  the  support  and  education  of  such  child  or  chil- 
iiiiant.  dren,  during  their  minority,  the   Orphans'   Court  may 

direct  a  suitable  periodical  allowance,  out  of  the  minor's 
estate,  for  the  support  and  education  of  such  minor,  ac- 
cording to  the  circumstances  of  each  case,  which  order 
may,  from  time  to  time,  be  varied  by  the  court,  accord- 
ing to  the  age  of  the  minor  and  the  circumstances  of  the 
case. 
The  Orphans'  Sect.  14.  When  an  executor,  administrator,  guardian 
Court  may  di-  or  trustcc  shall  havc  in  his  hands  any  moneys,  the  princi- 
vestmcnt'of  P^'^  ^"^  Capital  whcreof  is  to  remain  for  a  time  in  his  pos- 
trust  moneys,  session,  or  Under  his  control,  and  the  interest,  profits  or 
income  thereof  are  to  be  paid  away,  or  to  accumulate,  or 
when  the  income  of  a  real  estate  shall  be  more  than  suf- 
ficient for  the  purposes  of  the  trust,  such  executor,  ad- 
ministrator, guardian,  or  trustee  may  present  a  petition 
to  the  Orphans'  Court  of  the  proper  county,  stating  the 
circumstances  of  the  case,  and  the  amount  or  sum  of 
money  which  he  is  desirous  of  investing;  whereupon,  it 
shall  be  lawful  for  the  court,  upon  due  proof,  to  make  an 
order  directing  the  investment  of  such  moneys  in  the 
stocks  or  public  debt  of  the  United  States,  or  in  the  public 
debt  of  this  commonwealth,  or  in  the  public  debt  of  the 
city  of  Philadelphia,  or  on  real  securities,  at  such  prices 
or  on  such  rates  of  interest  and  terms  of  payment  respec- 
tively as  the  court  shall  think  fit;  and  in  case  the  said 
moneys  shall  be  invested  conformably  to  such  directions, 
the  said  executor,  administrator,  guardian  or  trustee,  shall 
be  exempted  from  all  liability  for  loss  on  the  same  in  like 


ORPHANS'  COURTS.  IXVll 

manner  as  if  such  investments  had  been  made  in  pursu- 
ance of  directions  in  the  will  or  other  instrument  creating 
the  trust:  Provided,  That  nothing  herein  contained  shall  Proviso, 
authorize  the  court  to  make  an  order  contrary  to  the  Not  to  act 
direction  contained   in  any  will  or  other  instrument  in  ^°."|™'y  *° 
regard  to  the  investment  of  such  moneys. 

Sect.  15.   No  account  of  an  executor,  administrator  or  Accounts  of 
guardian  shall  be  confirmed  and  allowed  by  the  Orphans'  norto'bL'con- 
Court,  except  in  the  cases  herein  specially  provided  for,  firmed  unless 
unless  it  shall  appear  on  the  presentation  of  such  account  "°have''beeu 
that  notice  of  such  presentation  has  been  given,  conform-  given,  &c. 
ably  to  the  directions  of  the  act,  entitled,  «  An  act  relating 
to  Registers  and  Registers'  Courts." 

,Sect.  16.  All  accounts  presented  to  the  Orphans' Court 
by  executors,  administrators,  guardians  or  trustees,  ex- 
cept partial  accounts  rendered  by  guardians  in  pursuance  Accounts  of 
of  section  the  tenth  of  this  act,  shall,  unless  it  be  other-  ^^  beTxamin- 
wise  agreed  by  all  parties  interested,  be  examined  by  the  edbythecourt 
court  or  referred  to  suitable  persons,  not  exceeding  three  "JjJitors!'"^  ^° 
in  number,  to  be  appointed  by  the  said  court,  or  by  the 
parties  where  they  are  all  present  or  duly  represented, 
and   competent  to  agree;  and  the  persons  so  appointed 
shall  be  sworn  or  affirmed  to  perform  their  duties  with 
fidelity,  and  shall  have  power  to  administer  oaths  and 
affirmations  to  parties  and  witnesses,  in  all  cases  referred 
to  them. 

Sect.  17.  No  executors  or  £^dministrator  shall  be  lia-  Execut,ors,&c. 
ble  to  pay  interest  but  for  the  surplusage -of  the  estate  re-  pay  "nt'erest. " 
maining  in  his  hands  or  power  when  his  accounts  are  or 
ought  to  be  settled  and  adjusted  in  the  Register's  office: 
Provided,  That  nothing  herein  contained  shall  be  con-  Proviso, 
strued  to  exempt  an  executor  or  administrator  from  lia- 
bility to  pay  interest  where  he  may  have  made  use  of  the 
funds  of  the  estate  for  his  own  purposes,  previously  to 
the  time  when  his  accounts  are  or  ought  to  be  settled  as 
aforesaid. 

Sect.  18.  The  amount  of  interest  to  be  paid  in  all  Amount  of 
cases  by  executors,  administrators  and  guardians,  shall  be  ;j^\";!;2ned'^ 
determined  by  the  Orphans'  Court,  under  all  the  circum-  by  the  court, 
stances  of  the  case,  but  shall  not,  in  any  instance  exceed 
the  legal  rate  of  interest  for  the  time  being. 

Sect.  19.  Whenever  there  shall  not  be  sufficientassets  Auditorstobe 
to  pay  all  the  debts  of  a  decedent,  it  shall  be  the  duty  of  "I'l'";"?;;;; ;;° 
the  Orphans'  Court  having  jurisdiction,  upon  the  appUca-  sets  among 
tion  of  the  executor  or  administrator,  to  appoint  auditors  ci-editoi-s. 
to  settle  and  adjust  the  rates  and  proportions  of  the  assets 
to  and  among  the  respective  creditors,  according  to  the 
order  established  by  law:  Provided  nevertheless, 'Th^i  Proviso. 
no  creditor  who  shall  neglect  or  refuse  to  exhibit  his  ac- 


I.WIII 


ORPHANS'  COURTS. 


Further  no- 
tice may  be 
givfu  of  the 
settlement  of 
accounts. 


Executor  or 
administrator 
may  be  dis- 
charged. 


Dellnqueat 
executors,  &c. 
may  be  re- 
quired to  give 
security. 


count  to  the  executor  or  administrator  within  twelve 
months  after  public  notice  e;iveu  in  one  or  more  of  the 
newspapers  published  in  the  county  in  which  letters  tes- 
tamentary or  of  administration  may  have  been  granted, 
or  if  there  be  none  in  such  county,  then  in  one  or  more 
newspapers  published  in  an  adjoining  county,  and  con- 
tinued in  such  newspaper  for  four  -consecutive  weeks, 
shall  be  entitled  to  receive  any  dividend  of  such  remain- 
ing assets. 

Sect.  20.  When  any  of  the  heirs,  legatees,  distributees 
or  creditors  of  a  decedent  reside  out  of  this  state,  or  out 
of  the  United  Slates,  or  from  other  circumstances  it  may 
be  expedient  that  additional  or  further  notice  should  be 
given  of  the  settlement  of  the  account  of  an  executor,  ad- 
ministrator, guardian  or  trustee,  or  of  the  distribution  of 
the  assets  or  sm-plusage  of  the  estate,  it  shall  be  in  the 
discretion  of  the  Orphans'  Court  to  require  such  further 
or  additional  notice  to  be  given  by  such  accountant,  as 
they  may  think  proper,  to  appear  in  court,  or  before  the 
auditors  by  them  appointed,  as  the  case  may  be,  at  such 
times  as  shall  be  lixed  for  the  examination  of  such  ac- 
count, or  for  the  distribution  of  the  assets  or  the  sur- 
plusage of  ^:he  estate. 

Sect.  21.'  An  executor  or  administrator  may,  with  the 
leave  of  the  Orphans'  Court  having  jurisdiction,  make  a 
settlement  of  his  accounts,  so  far  as  he  shall  have  ad- 
ministered the  estate  committed  to  him,  and  the  same 
being  confirmed  by  the  court,  he  may  be  discharged  from 
the  duties  of  his  appointment,  and  surrender  the  remain- 
der of  the  property  in  his  hands,  to  sucli  person  as  the 
court  may  direct.  ' 

Sect.  22.  Whenever  it  shall  be  made  to  appear  to  the 
Orphans'  Court  having  jurisdiction  of  the  accounts  of  any 
executor,  administrator  or  guardian,  or  to  any  judge 
thereof,  when  such  court  shall  not  be  in  any  session,  on 
the  oath  or  affirmation  of  any  person  interested,  that  such 
executor,  administrator  or  guardian  is  wasting  or  mis- 
managing the  estate  or  property  under  his  charge,  or  is 
like  to  prove  insolvent,  or  has  neglected  or  refused  to 
exhibit  true  and  perfect  inventories,  or  render  full  and 
just  accounts  of  such  estate  or  property,  come  to  his 
hands  or  knowledge,  then  and  in  every  such  case  it  shall 
be  lawful  for  such  court,  or  for  such  judge  thereof,  to  is- 
sue a  citation  to  such  executor,  administrator  or  guardian, 
requiring  him  to  appear,  on  a  day  certain,  before  an  Or- 
phans' Court  to  be  convened  for  such  purpose,  if  the  said 
court  shall  not  then  be  in  session,  and  the  case  shall  re- 
quire despatch,  and  upon  the  return  of  such  citation,  the 
said  court  may  require  such  security  of  such  executor,  or 


ORPHANS'  COURTS. 


Ixix 


such  other  and  further  security  of  such  administrator  or 
guardian  as  they  may  think  reasonable,  conditioned  for 
the  performance  of  their  respective  trusts,  which  security 
shall  be  taken  in  the  name  of  the  commonwealth  of  Penn- 
sylvania and  filed  in  the  said  Orphans'  Court,  and  shall 
be  deemed  and  considered  in  trust  for  the  benefit  of  all 
persons  interested  in  such  estate:  Provided,  That  if,  in  Proviso. 
the  cases  above  mentioned,  it  shall  be  made  to  appear  to 
the  said  court  or  any  judge  thereof,  on  oath  or  affirma- 
tion as  aforesaid,  that  such  executor,  administrator  or 
guardian  is  about  to  remove  from  this  commonwealth,  or 
that  the  property  under  his  charge  may  be  wasted  or 
materially  injured  before  he  can  be  reached  by  the  ordi- 
nary process  of  the  court,  it  shall  be  lawful  for  such 
court,  or  such  judge  thereof,  to  issue  a  writ  of  attach- 
ment, under  which  the  same  proceedings  may  take  place 
as  in  other  casea  of  attachment  on  mesne  process  in  the 
Orphans'  Court;  and  on  the  return  of  such  attachment, 
the  court  may  proceed  as  on  the  return  to  the  citation 
above  mentioned. 

Sect.  23.  If  such  executor,  administrator  or  guardian.  On  failure  to 
shall  neglect  or  refuse  to  give  such  security  or  such  fur-  S'^*^  secuntv, 

O  Til  -1  111  excculors,  tec, 

ther  security  so  ordered,  then  the  said  court  shall  vacate  niay  be  re- 
such  letters  testamentary  or  of  administration,  or  remove  moved, 
such  guardian,  and  award  new  letters,  to  be  granted  in 
such  form  as  the  case  may  require,  by  the  Register  hav- 
ing jurisdiction,  upon  ■  such  security  as  the  court  shall 
think  proper;  and  in  the  case  of  a  guardian,  the  court 
shall  proceed  to  the  admission  or  the  appointment  of  a 
new  guardian,  according  to  the  circumstances  of  the  case; 
and  the  said  court  shall  moreover  order  the  first  execu- 
tor, administrator  or  guardian  to  deliver  over  and  pay  to 
his  successor  all  and  every  the  goods,  chattels  and  estates 
in  his  hands,  of  the  decedent  or  minor,  as  the  case  may  be. 

Sect.  24.  If  such  superseded  executor,  administrator  ^iow  the  or- 
or  guardian,  shall  neglect  or  refuse  to  comply  with  the  derofthe 
order  of  the  court  in  the  premises,  the  court  may  proceed  ^"Xroed^  ''° 
against  him  by  attachment,  with  or  without  sequestra- .igainst  a  s\i- 
tion,  or  may  issue  process  for  the  delivery,  of  the  trust,  persededexe 
property  and  effects,  as  is  hereinafter  pro^'ided,  or  the 
successor  may  proceed  at  law  against  him  and  his  sure- 
ties, if  any  there  be,  or  against  any  other  person  who  may 
be  possessed  of  any, goods  or  chattels  belonging  to  the 
estate  of  the  decedent  or  minor,  as  the  case  may  be,  or  be 
indebted  to  him,  or  the  remedies  by  execution  and  suit  at 
law  may  be  pursued  at  the  same  time,  if  the  case  so  re- 
quire, until  the  end  be  fully  attained. 

Sect.  25.  Whenever  it  shall  be  made  to  appear  to  the  Proceedings 
satisfaction  of  the  Orphans'  .Court,  having  jurisdiction  as  '*'''^'"'-' *" 


Ixx 


ORPHANS'  counrs. 


excciilrix 
marries  w  itii 
out  si'curitig 
till'  minors' 
jiortion,  Ike. 


Proceedings 
■where  an  exe- 
cutor is  a  lu- 
natic or  liabit- 
ual  drunkard. 


Proceedinsjs 
■where  an  exe- 
cutor, &c.  lias 
removed  IVom 
the  state,  &c. 


aforesaid,  br  of  any  judge  thereof,  when  such  court  shall 
not  be  in  session,  that  an  executrix,  having  minors  of  her 
own,  or  being  concerned  for  others,  is  married,  or  like  to 
be  espoused  to  another  husband  without  securing  the 
minors'  portions,  or  real  estates,  it  shall  be  lawful  for 
such  court,  or  for  such  judge  thereof,  to  issue  a  citation  to 
such  executrix,  or  if  she  shall  have  been  married  to  an- 
other husband,  then  to  her  and  sfich  husband,  requiring 
her  or  them,  as  the  case  may  be,  to  appear  on  a  day  cer- 
tain, before  an  Orjihans'  Court,  to  be  convened  for  such 
purpose,  if  the  said  court  shall  not  th(?n  be  in  session,  as 
is  herein  before  provided  for  in  the  case  of  delinquent 
executors,  administrators,  or  guardians,  and  on  the  return 
of  such  citation,  the  said  court  may  require  such  security 
to  be  given  by  such  executrix,  or  by  her  huslwnd,  if  she 
shall  have  been  married  again,  as  the  circumstances  of 
the  case  may  require;  and  if  such  execn,trix,  or  her  hus- 
band, as  aforesaid,  shall  fail  or  refuse  to  give  such  se- 
curity, it  shall  be  lawful  for  the  said  court  to  vacate  the 
letters  testamentary,  and  to  award  new  letters,  to  be 
granted  by  the  Register  having  jurisdiction,  on  such  se- 
curity as  they  may  think  proper. 

Sect,  26.  When  any  executor,  administrator  or  guar- 
dian shall  have  been  duly  declared  a  lunatic,  or  an  ha- 
bitual drunkard,  it  shall  be  lawful  for  the  Orphans'  Court 
having  jurisdiction  over  the  accounts  of  such  executor, 
administrator,  or  guardian,  to  vacate  the  letters  testamen- 
tary or  of  administration  granted  to  such  executor  or  ad- 
ministrator, and  to  remove  such  guardian,  and  to  award 
new  letters,  to  be  granted  in  such  form  as  the  case  may 
require,  by  the  Register,  having  jurisdiction  upon  such 
security  as  the  court  shall  tliink  proper;  and  in  the  case 
of  a  guardian,  the  court  shall  proceed  to  the  admission  or 
appointment  of  a  new  guardian  accordingly;  and  the 
court  shall  also  make  such  order,  for  the  security  of  the 
trust  property,  and  for  its  delivery  to  the  successor  of 
such  executor,  administrator  or  guardian,  as  the  circum- 
stances of  the  case  may  require. 

Sect.  27.  When  any  executor,  administrator,  or  guar- 
dian shall  have  removed  from  this  state,  or  shall  have 
ceased  to  have  any  known  place  of  residence  therein, 
during  the  period  of  one  year  or  more,  the  Orphans' 
Court,  having  jurisdiction  of  the  account  of  such  execu- 
tor, administrator  or  guardian,  may,  on  the  application  af 
any  person  interested,  and  after  a  citation  shall  have  been 
returned,  served,  or  published,  as  is  hereinafter  provided, 
make  a  decree  vacating  such  letters  testamentary  or  of 
administration,  and  remove  such  guardian,  and  award 
new  letters,  to  be  granted  in  such  form  as  the  case  may 


ORPHANS'  COURTS.  Ixxi 

require,  by  the  Register,  having  jurisdiction,  upon  such 
security,  as  the  court  shall  think  proper;  and  in  the  case 
of  a  guardian,  the  court  shall  proceed  to  the  admission  or 
appointment  of  another  guardian  accordingly:  Provided,  Proviso. 
That  no  decree,  as  aforesaid,  shall  suspend  the  power,  or 
prejudice  the  acts  of  any  person  who  may  be  joined  with 
such  executor,  administrator  or  guardian  in  the  trust. 

Sect.  28.  Application  may  be  made  to  the  Orphans'  Relief  may  be 
Court,  or  any  judge  thereof,  in  the  cases  mentioned,  in  given  in  the 
the  twenty-third  section  of  this  act,  by  any  surety  in  the  case  of  a  sure- 
bond  of  such  executor,  administrator  or  guardian,  and 
upon  such  surety  making  oath  or  affirmation,  as  required 
in  that  section,  the  like  proceedings  may  be  had  for  the 
purpose  of  compelling  such  executor,  administrator  or 
guardian  to  give  securfty,  and  thereupon  the  court  may 
order  such  executor,  administrator  or  guardian  to  give 
such  counteir  securities  as  they  shall  judge  necessary  to 
indemnify  him  against  loss  by  reason  of  his  suretyship; 
and  if  such  executor,  administrator,  or  guardian  shall  re- 
fuse or  fail  to  give  such  security,  within  such  reasonable" 
time  as  the  court  shall  order,  it  shall  be  lawful  for  the 
court  to  direct  such  executor,  administrator  or  guardian, 
to  pay,  or  deliver  over  forthwith  to  such  surety,  or  to 
some  other  person  for  him,  all  goods,  chattels,  effects  and 
securities  whatsoever,  for  which  such  surety  may  be  ac- 
countable: Provided,  That  such  surety  shall  first  give,  to  proviso, 
the  satisfaction  of  the  court,  sufficient  security,  faithfully 
to  preserve  and  account  therefor,  and  deliver  and  dispose 
of  the  same  according  to  the  order  of  the  said  court. 

Sect.  29.   It  shall  be  the  duty  of  the  prothonotary  of  Balances  due 
the  Courts  of  Common  Pleas  of  the  respective  counties,  H  executors, 
to  file  and  docket,  whenever  the  same  shall  be  furnished  to  the'com-'^ 
by  any  parties  interested,  certified  transcripts  or  extracts,  mow  Pleas  to 
of  the  amount  appearing  to  be  due  from  or  in  the  hands  J^"."^*""^*^  * 
of  any  executor,  administrator,  guardian,  or  other  ac- 
countant, on  the  settlement  of  their  respective  accounts 
in  the  Orphans'  Court,  which  transcripts  or  extracts,  so 
filed,  shall  constitute  liens  on  the  real  estate  of  such  exe- 
cutor, administrator,  guardian,  or  other  accountant,  from 
the  time  of  such  entry  until  payment,  distribution,  or 
satisfaction;  and  actions  of  debt  or  scire  facias  may  be 
instituted  thereon,  by  any  person  or  persons  interested, 
for  the  recovery  of  so  much  as  may  be  due  to  them  re- 
spectively: Provided,  however.  That  the  liens  thereby  Proviso, 
created  shall  cease  at  the  expiration  of  five  years  from  the 
time  of  the  entry  aforesaid,  unless  revived  by  scire  facias 
in  the  jnanner  by  law  directed,  in  the  cases  of  judgments 
in  the  courts  of  comiAon  law:  ^nd  provided  further,  9,A[no\\so. 
That  in  case  of  an  appeal  from  the  Orphans'  Court,  the 


1  \-  \  j  i  OR  PI  I ANS-  COURTS. 

liens  shall  be  for  no  niore  than  for  the' amount  finally 
found  clue  and  decreed  in  the  Supreme  Court,  and  it  shall 
be  the  duty  of  the  prothonotary  of  the  Common  Pleas,  on 
such  decree  of  the  Supreme  Court  being  certified  to  him, 
to  enter  on  his  docket  the  amount  so  found  due  and  de- 
creed by  the  Supreme  Court,  and   if  such   amount  be 
greater  than  that  decreed  by  the  Orphans'  Court,  the  lien 
for  such  excess  shall  take  effect  only  from  the  time  of 
entering  the  decree  of  the  Supreme  Court;  but  if  the 
amount  be  reduced  by  the  final  decree  of  the  Supreme 
Court,  the  prothonotary  shall  reduce  the  amount  origi- 
nally entered  on  his  judgment  docket  and  index  accord- 
ingly, and  such  final  decree,  upon  appeal  being  certified 
and  filed  in  the  said  Court  of  Common  Pleas,  the  said 
term  of  five  years  sliall  be  counted  from  the  time  of  such 
entry. 
Satisfaction  to       Sect.  30.  When  the  executor,  administrator,  guardian, 
fed-tHror      o^'  o*^^^^^  accountant  shall  have  fully  paid  and  discharged 
sucFilieii.     ■   the  amount  of  such  lien,  the  parties  who  have  received 
■payment  shall  acknowledge  satisfaction  thereof,  to  the 
extent  of  what  they  have  received,  on  the  record  of  the 
Court  of  Common  Pleas;  and  in  case  of  neglect  or  refusal 
so  to  do,  for  the  space  of  thirty  days  after  request  in  wri- 
ting and  tender  of  all  the  cost,  such  party  shall  forfeit  and 
pay  to  the  party  aggrieved  the  sum  of  fifty  dollars,  abso- 
.    lutely,  and  any  further  sum  not  exceeding  the  amount  by 
such  person  received,  as  shall  be  assessed  by  a  jury  on  a 
trial  at  law;  or  the  Orphans'  Court,  on  due  proof  to  them 
made,  that  the  entire  amount  due  from  such  executor, 
administrator,  guardian,  or  other  accountant,  according 
to  the  final  settlement  of  the  said  account,  has  been  fully 
paid  and  discharged,  may  make  an  order  for  their  relief 
from  such  recorded  lien,  which  order,  being  certified  to 
the  Court  of  Common  Pleas,  shall  be  entered  on  their  re- 
cords, and  shall  enure  and  be  received  as  a  full  satisfac- 
tion and  discharge  of  such  lien. 
Power  of  tl.e        Sect;  31.  The  Orphans'  Court  which  possesses' juris- 
Orplians'         tion  of  the  accounts  of  an  executor,  administrator,  or 
t^orizea^'saie  guardian,  shall  have  power  to  authorize  a  sale  or  mort- 
01-  mortgage     gage  of  real  estate  by  such  executor,  administrator  or 
of  real  estate.  gugrJian,  in  the  following  cases,  viz: 
1st  case.  I-  On  the  application  of  the  executor  or  administrator, 

setting  forth  that  the  personal  estate  of  the  decedent  is 
insuflicient  for  the  payment  of  debts  and  maintenance 
and  education  of  his  minor  children,  or  for  the  purpose 
of  paying  the  debts  alone. 
2j  case.  il-  0^  the  application  of  such  executor  or  administra- 

tor, or  of  any  person  interested,  setting  forth,  that  on  the 
final  settlement  of  the  administration  account,  it  appears 


ORPHANS'  COURTS. 


kxiii 


that  there  are  not  sufficient  personal  assets  to  pay  the 
balance  appearing  to  be  due  from  the  estate  of  such  dece- 
dent, either  to  the  accountant  or  others. 

III.  On  the  application  of  a  guardian,  setting  forth  that  3d  case, 
the  personal  estate  of  the  minor  is  insufficient  for  his 
maintenance  and  education,  or  for  the  improvement  and 
repair  of  other  parts  of  his  real  estate,  or  that  the  estate 
of  said  minor  is  in  such  a  state  of  dilapidation  and  decay, 
or  so  unproductive  and  expensive,  that  it  would  be  to 
the  interest  and  benefit  of  said  minor,  in  the  judgment  of 
said  court,  that  the  said  estate  should  be  sold,  and  the  Or- 
phans' Court  of  the  county  wherein  any  such  real  estate 
may  be  situate,  shall  have  the  same  authority  to  direct  a 
sale  in  this  latter  case,  as  in  the  cases  particularly  men- 
tioned in  the  thirty-second  section  of  this  act. 

Sect.  32.  When  the  real  estate,  with  respect  to  which  Manner  of 
application  shall  be  made  to  the  Orphans'  Court,  in  the  ^JpUeS "^ 
cases  mentioned  in  the  preceding  section,  is  situated  in  for  sale  of 
the  same  county,  the  said  court  may  order  the  sale  or  i^"'^- 
mortgage  of  such  part,  or  so  much  of  such  real  estate  as 
to  them  shall  appear  necessary,  .when  the  real  estate  is 
situated  in  another  county  or  counties,  or  in  the  same 
and  another  county  or  counties,  and  the  Orphans'  Court 
which  possesses  jurisdiction  over  the  accounts  of  such 
executor,  administrator  or  guardian,  shall  be  satisfied  of 
the  propriety  of  a  sale  or  mortgage  of  some  portion  of 
such  real  estate  not  within  their-  jurisdiction,  it  shall  be 
lawful  for  such  court  to  make  a  decree,  authorizing  such 
executor,  administrator  or  guardian,  to  raise  so  much 
money  as  the  said  court  may  think  necessary,  from  real 
estate  situated  in  such  county  or  counties  as  they  may 
designate;  and  thereupon,  it  shall  be  the  duty  of  the  Or- 
phans' Court  of  the  county  wherein  the  real  estate  so 
designated  is  situated,  upon  the  petition  of  such  executor, 
administrator  or  guardian,  to  make  an  order  for  the  sale 
or  mortgage,  as  they  shall  think  expedient,  of  so  much, 
and  such  parts  of  such  real  estate,  as  shall,  in  their  opi- 
nion, be  necessary  to  raise  the  specified  sum;  and  such 
executor,  administrator  or  guardian,  shall  in  all  cases 
make  return  of  his  proceedings  in  relation  to  such  sale  or 
mortgage,  to  the  Orphans'  Court  of  the  county  in  which 
the  real  estate  so  sold  or  mortgaged  lies,  when,  if  the 
same  be  approved  by  the  court,  it  shall  be  confirmed. 

Sect.  33.  That  no  authority  for  the  sale  or  mortgage  inventory  to 
of  real  estate,  lying  in  the  same  or  another  county  or  be  filed  before 
counties,  shall  be  granted,  until  the  executor,  administra-  can  be  grant- 
tor  or  guardian,  as  the  case  may  be,  shall  have  exhibited  ed. 
to  the  said  court,  a  true  and  perfect  inventory  and  con- 
scionable  appraisement  of  all  the  personal  estate  whatso- 
K 


Ixxiv 


ORPHANS'  COURTS. 


Proviso. 


The  Orphans' 
Court  may  ap- 
point  auditors 
on  a])plication 
for  sale  of 
land. 


Widow's 
election  of 
dower  or 
otherwise. 


Partition, 
power  of  the 
court  to  au- 
thorize. 


ever  of  the  decedent  or  mihor,  as  the  case  may  be,  to- 
gether with  a  full  and  correct  statement  of  all  the  real 
estate  of  such  decedent  or  minor,  wherever  situated, 
which  has  come  to  his  knowledge;  and  also,  in  the  case 
of  an  executor  or  administrator,  a  just  and  true  account 
upon  oath  or  affn'mation,  of  all  the  debts  of  the  decedent 
which  have  come  to  his  knowledge;  nor  in  any  case  shall 
such  authority  be  granted,  until  such  executor,  adminis- 
trator or  guardian,  shall  have  filed  in  the  office  of  the 
clerk  of  the  said  court,  a  bond,  with  sufficient  security, 
to  be  approved  of  by  the  court,  conditioned  for  the  faith- 
ful appropriation  of  the  proceeds  of  such  sale  or  mort- 
gage, according  to  their  respective  duties:  And  provided 
further,  That  no  real  estate  contained  in  any  marriage 
settlement,  shall,  by  virtue  of  this  act,  be  sold  or  disposed 
of  contrary  to  the  form  and  effect  of  such  settlement,  and 
tliat  the  mansion-house  or  most  profitable  part  of  the 
estate,  shall  be  reserved  to  the  last. 

Sect.  34.  In  all  cases  where  an  application  shall  be 
made  to  any  Orphans'  Court,  for  a  decree  authorizing 
the  sale  or  mortgage  ofxeal  estate,  under  any  of  the  pro- 
visions contained  in  this  act,  the  court  may  appoint  suita- 
ble persons  to  investigate  the  facts  of  the  case,  and  to  re- 
port upon  the  expediency  of  granting  the  application,  and 
the  amount  to  be  raised  by  such  sale  or  mortgage;  and 
upon  such  report  being  made,  the  court  may  decree  ac- 
cordingly. 

Sect.  35.  In  every  case  of  a  devise  or  bequest  to  a 
widow,  which  by  force  of  any  last  will  and  testament,  or 
by  operation  of  law,  will  bar  such  widow  of  dower,  sub- 
ject to  her  right  of  election  of  dower,  or  of  the  property 
devised  or  bequeathed,  it  shall  be  lawful  for.  the  Orphans' 
Court,  on  the  application  of  any  person  interested  in  the 
estate  of  the  decedent,  to  issue  a  citation  at  any  time  after 
twelve  months  from  the  death  of  the  testator,  to  any  such 
widow,  to  appear  at  a  certain  time  not  less  than  one 
month  thereafter,  in  the  said  court,  to  make  her  election, 
either  to  accept  such  devise  or  bequest  in  lieu  of  dower, 
or  to  waive  such  devise  or  bequest  and  take  her  dower, 
of  which  election  a  record  shall  be  made,  which  shall  be 
conclusive  on  all  parties:  if  the  widow  shall  neglect  or 
refuse  to  appear  upon  such  citation,  then  upon  due  proof 
to  the  court  of  the  service  thereof,  the  said  neglect  or  re- 
fusal shall  be  deemed  an  acceptance  of  the  devise  or  be- 
quest, and  a  bar  of  dower,  of  which  a  record  shall  be 
made,  which  shall  be  conclusive  on  all  parties  concerned. 

Sect.  36.  The  Orphans'  Court  of  the  county  where 
the  real  estate  of  a  decedent  is  situate,  shall  have  power, 
on  the  application  of  the  widow  or  any  lineal  descendant 


ORPHANS'  COURTS. 


Ixxv 


of  the  decedent  having  an  interest  in  such  real  estate,  if 
of  full  age,  or  if  under  age  on  the  application  of  his  guar- 
dian, to  appoint  seven  or  more  disinterested  persons, 
chosen  on  behalf  and  with  consent  of  the  parties,  or  when 
the  parties  cannot  so  agree  to  award  an  inquest,  to  make 
partition  of  the  real  estate  of  such  decedent;  and  upon  the 
return  made  by  the  persons  so  appointed,  or  of  the  in- 
quisition taken,  to  give  judgment  that  the  partition  there- 
by made  be  firm  and  stable  forever,  and  that  the  costs 
thereof  be  paid  by  the  parties  concerned. 

Sect.  37.  When  any  such  estate  cannot- be  divided  Partition  pro- 
among  the  lineal  descendants  as  aforesaid,  or  the  widow  Xre'^the  es- 
and  such  lineal  descendants,  without  prejudice  to  or  spoil-  tate  cannot  be 
ing  the  whole,  the  said  seven  or  more  persons,  or  the  fHvided. 
said  inquest,  as.  the  case  may  be,  shall  make  and  return  a 
just  appraisement  thereof  to  the  Orphans'   Court,  and 
thereupon,  but  not  otherwise,  the  said  court  may  order 
the  same. 

I.  To  the  eldest  son,  if  he  be  living;  but  if  he  be  dead, 
to  his  children,  if  any,  in  the  order  of  their  birth,  and 
preferring  males  to  females;  and  in  like  manner  to  his 
other  lineal  descendants  in  the  same  order. 

II.  If  the  eldest  son,  or  his  lineal  descendants,  do  not 
accept  the  same,  then  to  the  second  and  other  sons,  or 
their  lineal  descendants  successively,  in  the  order  of  birth, 
in  like  manner  as  is  provided  for  the  eldest  son  and  his 
descendants. 

III.  If  the  second  or  other  sons,  or  their  descendants, 
do  not  accept  the  same  as  aforesaid,  then  to  the  eldest 
daughter  or  her  lineal  descendants;  in  like  manner  as  is 
provided  in  the  case  of  the  eldest  son. 

IV.  If  the  eldest  daughter,  or  her  lineal  descendants, 
do  not  accept  the  same,  then  to  the  second  and  other 
daughters,  or  their  lineal  descendants  successively,  in 
like  manner  as  is  provided  for  the  second  and  other 
sons. 

In  every  such  case,  the  party  accepting  the  same,  or 
some  one  on  his  behalf  paying  to  the  other  parties  in-  . 
terested  their  proportionable  parts  of  the  value  of  such 
estate,  according  to  the  just  appraisement  thereof,  made 
in  manner  aforesaid,  or  giving  good  security  by  recog- 
nizance or  otherwise,  to  the  satisfaction  of  the  court,  for 
tlie  payment  thereof,  with  legal  interest  in  some  reasona- 
ble time,  not  exceeding  twelve  months,  as  the  court  may 
direct;  and  the  persons  to  whom  or  for  whose  use  pay- 
ment or  satisfaction  shall  be  so  made,  in  any  of  the  cases 
aforesaid,  for  their  respective  parts  or  shares  of  such  real 
estate,  shall  be  for  ever  barred  of  all  right  or  title  to  the 
same. 


IxXVi  ORPHANS'  COURTS. 

Partition  pro-  Sect.  38,  When  equal  partition  in  value  cannot  be 
c.-cilii)(,'3  to  made  by  the  seven  men  appointed  as  aforesaid,  or  by  the 
of "imrii'ti'on!*'^  Said  inquest,  they  shall  make  a  just  appraisement  of  the 
respective  purparts  or  shares  in  which  they  may  divide 
the  estate,  and  thereupon  the  court  may  order  the  said 
purparts  or  shares  successively  to  the  persons  entitled  to 
make  choice  therefrom,  in  the  order  and  according  to  the 
rules  enacted  in  the  preceding  section,  \Yhcre  the  estate 
cannot  conveniently  he  divided;  and  they  shall  award 
that  one  or  more  purparts  or  shares  shall  be  subject  to 
the  payment  of  such  sum  or  sums  of  money  as  shall  be 
necessary  to  equalize  the  value  of  the  said  purparts,  ac- 
cording to  the  said  appraisement  thereof;  which  sum  or 
sums  of  money  shall  be  paid,  or  secured  to  be  paid,  by 
the  several  persons  accepting  such  purparts,  in  the  man- 
ner prescribed  in  the  foregoing  section. 
„   ....  Sect.  39.   When  such  estate  cannot  conveniently  be 

1  artition  pro-  •  •  i    j 

ceedings         divided  luto  as  many  shares  as  there  are  parties  entitled, 
where  the  cs-  ^Y\e  scvcn  men  appointed  as  aforesaid,  or  the  said  inquest, 

tate  cannot  be     ,111  •      .  •  x      r  ii  t-  i« 

divided  into     shall  make  a  just  appraisement  ot  the  respective  purparts 
as  many  parts  or  shares,  into  wliich  they  may  divide  the  estate,  and 
as  heirs.         thereupon  the  court  may  order  the  shares  successively  to 
the  parties  entitled,  to  make  choice  therefrom,  in  the 
order  and  according  to  the  rules  hereinbefore  provided 
for  the  case  where  the  estate  cannot  conveniently  be 
divided,  they  or  some  one  in  their  behalf,  paying  or  se- 
curing to  be  paid  to  the  other  parties  interested,  their 
respective  parts  of  the  value  thereof,  in  the  manner  pre- 
scribed as  aforesaid. 
Partition,  the       Sect.  40.   In  all  cascs  of  appraisement  or  partition 
court  to  grant  mentioned  in  the  preceding  section,  the  Orphans'  Court 
heirs  to  accept  shall,  on  application,  grant  a  rule  on  all  persons  interested, 
or  refuse  their  to  come  into  court  at  a  certain  day  by  them  to  be  fixed, 
shares.  ^.^  J^(,(.gp^  qj.  refuse  the  estate'or  a  share  or  portion  thereof, 

as  the  case  may  be,  and  in  case  the  party  entitled  to  a 
choice,  do  not  come  into  court  in  person  or  by  guardian 
or  attorney  duly  constituted,  or  in  case  he  shall  refuse 
the  same,  a  record  shall  be  made  thereof  and  the  court 
may  and  shall  direct  the  same  to  be  offered  to  the  next  in 
succession,  according  to  the  rules  hereinbefore  provided. 
p    ..  Sect.  41.  Should  the  widow  of  the  decedent  be  living 

widow's  share  st  the  time  of  the  partition,  she  shall  not  be  entitled  to 
to  remain  a     payment  of  the  sum  at  which  her  purpart  or  share  of  the 
^^^'  estate  shall  be  valued,  but  the  same,  together  with  interest 

thereof,  shall  be  and  remain  charged  upon  the  premises, 
if  the  whole  be  taken  by  one  child  or  other  descendant  of 
the  deceased,  or  upon  the  respective  shares  if  divided  as 
hereinbefore  mentioned,  and  the  legal  interest  thereof 
shall  be  annually  and  regularly  paid  by  the  persons  to 


ORPHANS'  COURTS. 


Ixxvii 


whom  such  real  estate  shall  he  adjudged,  their  heirs  or 
assigns  holding  the  same  according  to  their  respective 
portions  to  the  said  widow  during  her  natural  life,  in  lieu 
and  full  satisfaction  of  her  dower  at  common  law,  and  the 
same  may  be  recovered  by  the  widow  by  distress,  or 
otherwise,  as  rents  in  this  commonwealth  are  recoverable; 
on  the  death  of  the  widow  the  said  principal  sum  shall 
be  paid  by  the  children,  or  other  lineal  descendants  to 
whom  the  said  real  estate  shall  have  been  adjudged,  their 
heirs  or  assigns  holding  the  premises  to  the  persons  there- 
unto legally  entitled. 

Sect,  42.  Upon  an  appraisement  or  valuation  of  real  Partition,  the 
estate  made  as  is  hereinbefore  provided,  should  all  the  *^^| j^"*?/ ?'' 
heirs  neglect  after  due  notice,  or  refuse  to  take  the  same  iieirs refuse  or 
at  the  valuation,  the  court  shall  on  the  application  of  any  neglect  to 
one  of  the  heirs,  grant  a  rule  upon  the  other  heirs  and  ^^  ^' 
others  interested  to  show  cause  why  the  estate  so  ap- 
praised should  not  be  sold,  which  rule  shall  be  returnable 
at  the  next  regular  session  of  the  court,  or  at  such  subse- 
quent period  as  the  court  having  respect  to  the  circum- 
stances of  the  case  may  direct,  and  notice  of  such  rule 
shall  be  given  in  the  manner  provided  in  this  act  for 
other  notices  to  heirs;  on  the  return  of  such  rule,  the 
court  may  on  due  proof  of  notice  to  all  persons  interested, 
make  a  decree  authorizing  and  requiring  the  executor  or 
administrator,  as  the  case  may  be,  to  expose  such  real 
estate  to  public  sale  at  such  time  and  place  and  on  such 
terms  as -the  court  may  decree:  Provided,  That  the  rule  Proviso, 
to  show  cause  herein  directed  may  be  dispensed  with  by 
the  court  on  the  application  of  all  the  heirs,  if  of  full  age, 
and  of  the  guardians  of  such  as  are  minors  for  such  de- 
cree, and  notice  of  such  sale  shall  be  given  by  the  execu- 
tor or  administrator,  in  the  manner  provided  in  this  act 
for  other  notices  of  sale. 

Sect.  43.  Where  a  decree  for  the  sale  of  real  estate  Partition,  the 
shall  be  made  by  the  Orphans'  Court,  in  the  event  pro-  widow's  share 
vided  for  in  the  preceding  section,  the  court  shall  direct  chase  money 
that  the  share  of  the  widow,  if  there  be  one,  of  the  pur-  to  remain  a 
chase  money,  shall  remain  in  the  hands  of  the  purchaser  *^  ^^^^^' 
'  during  the  natural  life  of  the  widow,  and  the  interest 
thereof  shall  be  annually  and  regularly  paid  to  her  by 
the  purchaser,  his  heirs  and  assigns,  holding  the  premises, 
to  be  recovered  by  distress  or  otherwise  as  rents  are  re- 
coverable in  this  commonwealth,  which  the  said  widow 
shall  accept,  in  full  satisfaction  of  her  dower  in  such  pre- 
mises, and  at  her  decease,  her  share  of  the  purchase  mo- 
ney shall  be  paid  to  the  persons  legally  entitled  thereto. 

Sect.  44.  When  the  lands,  in  respect  to  which  ap-  partition, 
plication  for  partition  shall   be  made  to  the  Orphans'  i«n«is  lying  in 


IXXVlll 


ORPHANS'  COURTS. 


(lifVii-ont 
count  ii-s. 


Partition,, 
lieirs  not  en- 
titled to  elec- 
tion in  more 
than  one 
county. 


Partition,  col- 
lateral  heirs 
entitled  to 
partition. 


Court  as  aforesaid  lie  in  one  or  more  adjoining  tracts,  in 
difl'crcnt  counties,  it  sliall  be  lawful  for  the  Orphans' 
Court  of  the  county  in  which  the  principal  mansion  is 
situate,  or  if  there  be  no  mansion  or  building  on  the 
lands,  then  the  court  of  the  county  in  which  the  greatest 
part  of  the  land  lies,  on  the  application  of  any  person  in- 
terested, either  to  proceed  by  the  appointment  of  seven 
or  more  men  agreed  on  by  the  parties,  or  to  issue  tlicir 
writ  to  the  sheriff  of  the  county  within  the  jurisdiction 
of  the  court,  specifying  the  lands  of  which  a  partition  or 
valuation  is  to  be  made,  and  thereupon  the  said  sheriff 
shall  summon  an  inquest  to  divide  or  value  the  said  lands 
in  the  same  manner  as  if  tlie  wliole  were  witliin  his  pro- 
per bailiwick;  and  upon  tlie  return  thereof,  or  upon  the 
retin-n  of  the  seven  or  more  men  appointed  by  consent, 
as  aforesaid,  the  court  may  further  proceed  therein,  in 
all  respects,  as  if  all  the  said  lands  were  in  the  proper 
county,  and  any  recognizance  taken  in  pursuance  of  such 
proceedings,  shall  be  as  effectual,  to  all  intents  and  pur- 
poses, as  if  the  lands  bound  by  it  were  wholly  within  the 
county  where  such  recognizance  is  taken:  Provided,  That 
an  exemplification  of  the  proceedings  which  may  be  had 
shall,  within  twenty  days  after  the  final  decree  therein, 
be  delivered  to  the  clerk  of  the  Orphans'  Court  of  each 
county  in  which  the  application  shall  not  have  been 
made,  and  in  which  any  part  of  the  said  lands  are  situate, 
which  shall  be  entered  on  the  records  of  such  court  at 
the  joint  expense  of  all  parties  concerned. 

Sect.  45.  In  any  case  where  one  of  the  heirs  of  a  de- 
cedent has  elected  to  take  the  real  estate  of  such  dece- 
dent in  one  county,  or  any  share  thereof,  if  divided  into 
shares,  such  heir  shall  not  have  the  right  of  preference 
or  election  to  take  the  real  estate  or  any  share  thereof  in 
any  other  county,  or  any  other  share  in  the  same  county, 
until  all  the  other  heirs  shall  have  neglected,  after  due 
notice,  or  refused  to  take  the  same  at  such  valuation. 

Sect.  46.  When  the  decedent  leaves  no  lineal  de- 
scendants, the  like  proceedings  shall  be  had  in  all  re- 
spects on  the  application  of  the  persons  in  whom  the 
estate  shall  vest  in  possession:  Provided,  That  if  there 
be  a  life  estate  or  life  estates  witli  remainders  over,  such 
remainder-men  shall  be  made  parties  to  the  proceedings 
in  partition,  and  shall  have  the  right  to  accept  or  refuse 
the  premises,  at  any  valuation  that  may  be  made  by  seven 
men,  appointed  as  aforesaid,  or  by  an  inquest  in  the  same 
manner  as  the  lineal  descendants  of  a  decedent,  such  re- 
mainder-men being  bound  by  recognizance  or  other  suf- 
ficient security,  according  to  the  direction  of  the  court, 
for  the  payment  of  the  annual  interest  to  the  tenant  or 


ORPHANS'  COURTS. 


Ixxix 


tenants  for  life,  and  tliereupon  the  court  shall  give  judg- 
ment, that  the  partition  so  made  between  them  be  and 
remain  fa-m  and  stable  for  ever,  and  that  the  costs  thereof 
be  paid  by  the  parties  concerned. 

Sect.  47.  In  all  cases  where  a  sale  shall  be  made  by  Executors,&c. 
an  executor,  administrator  or  guardian,  under  an  order  of  jeg^^i^^o/ 
the  Orphans'  Court,  and  such  executor,  administrator  or  property  sold 
guardian,  shall  be  removed  by  the  court,  or  shall  die,  or  J^'^P'"'''^'''''''' 
become  insane,  or  otherwise  incapable,  before  a  convey- 
ance is  made  to  the  purchaser,  it  shall  be  lawful  for  the 
succeeding  administrator  of  the  decedent,  or  for  the  suc- 
cessor in  the  guardianship,  as  the  case  may  be,  such  suc- 
ceeding administrator  or  guardian  having  given  security, 
to  be  approved  of  by  the  said  court,  for  the  faithful  ap- 
propriation of  the  proceeds  of  such  sale,  to  execute  and 
deliver  to  the  purchaser  a  deed  of  conveyance  for  the  es-' 
fate  so  sold,  on  the  purchaser's  full  compliance  with  the 
terms  and  conditions  of  sale;  but  if,  within  three  months 
after  such  sale,  there  shall  be  no  such  succeeding  admin- 
istrator or  guardian  having  given  security  as  aforesaid,  it 
shall  be  the  duty  of  the  Orphans'  Court,  on  petition  of  Or  clerk  of 
the  purchaser,  to  direct  the  clerk  of  the  court  to  execute  ^^"^^™{|;^' 
and  deliver  to  the  purchaser  the  necessary  deed  of  con-  cemin  cases, 
veyance,  on  his  full  compliance  with  the  terms  and  con- 
ditions of  sale,  paying  into  court  the  moneys  payable, 
and  delivering  to  the  clerk  the  securities  required  by  the 
said  terms  and  conditions,  which  moneys  and  securities 
shall  remain  subject  to  the  disposition  of  the  court;  every 
deed  made  in  pursuance  of,  and   agreeably  to  the  pro- 
visions of  this  act,  shall  vest  the  property  therein  de- 
scribed in  the  grantee,  as  fully  and  effectually  as  if  the 
same  had  been  made  by  the  persons  who  may  have  sold 
any  such  estate,  circumstanced  as  aforesaid;  the  like  pro- 
ceedings may  be  had  where  an  executor,  administrator  or 
guardian,  shall  neglect  or  refuse  to  execute  and  deliver 
such  deed  for  the  space  of  thirty  days,  after  due  notice  of 
an  order  of  the  court,  requiring  him  to  execute  the  same. 

Sect.  4S.  When,  upon  any  proceedings  in  the  Or- interest  of  a 
phans'  Court,  a  sum  of  money  shall  be  awarded  by  the  married  wo- 
court  for  the  share  or  portion  to  which  a  married  woman  "ec",.e\*J7 
may  be  entitled,  such  money  shall  not  be  paid  to  her 
husband  until  he  shall' have  given  security,  to  the  satis- 
faction of  the  court,  that  the  amount  thereof,  or  so  much 
thereof  as  the  court  shall  deem  proper,  be  paid  after  his 
death,  to  his  wife,  or,  if  she  shall  not  survive  him,  to  her 
heirs,  as  if  the  same  were  real  estate;  or,  if  the  husband 
shall  be  unable,  or  refuse  to  give  security  as  aforesaid, 
the  same  may  be  vested  in  trustees,  to  be  approved  by 
the  court,  for  the  same  purposes,  but  reserving  to  the 


Lvxx 


OIirUANS'  COURTS. 


Proviso. 


Form  of  de- 
claration. 


husband  the  interest  thereof  during  liis  life,  unless  the 
husband  shall  desire  the  same  to  be  settled  for  the  sepa- 
rate use  of  the  wife:  Provided  always,  That  if  the  wife, 
being  of  full  age,  on  a  separate  examination,  the  husband 
not  being  present,  shall  declare  before  one  of  the  judges 
of  the  same  court,  or,  if  not  resident  in  the  county,  before 
a  judge  of  a  Court  of  Record  in  the  county  or  place  where 
she  may  reside,  that  she  does  not  require  such  moneys  to 
be  so  secured,  and  that  she  makes  this  declaration  freely 
and  voluntarily,  without  any  threats  or  compulsion  on 
the  part  of  her  husband,  the  full  contents  and  legal  effects 
of  such  declaration  being  first  made  known  to  her  by  the 
judge,  and  the  said  declaration  and  acknowledgment  be 
certified  by  the  same  judge,  and  filed  of  record  in  the 
said  Orphans'  Court,  then  and  in  such  case,  the  husband 
shall  not  be  required  to  secure  the  said  moneys  in  man- 
ner aforesaid:  The  form  of  such  declaration  shall  be  as 
follows:  Whereas,  I,  A.  B.,  the  wife  of  C.  B.,  am  en- 
titled to  the  sum  of  proceeding  from  the  sale 
(or  partition)  of  the  real  estate  of  D.  E.,  in  the  county  of 
.  Now,  I  do  certify  and  declare,  that 
I  consent  and  agree  that  the  same  be  paid  to  my  husband, 
the  said  C.  B.,  without  any  condition  or  security  what- 
ever. Witness  my  hand,  this  day  of 
&c.  The  form  of  the  certificate  to  be  given  by  the 
judges,  shall  be  as  follows:  On  the  day  of 
A.  D.  personally  appeared  before  me,  one  of  the 
judges  of  the  (Orphans'  Court)  for  the  county  of 

A.  B.,  the  wife  of  C.  B,,  of  [Aere  insert  his 
residence  and  occiijjatioji]  who,  being  of  full  age,  and 
by  me  examined,  separate  and  apart  from  her  said  hus- 
band, and  the  contents  and  legal  effect  of  the  foregoing 
instrument  by  me  fully  explained  and  made  known  to 
her,  declared  that  she  executed  the  same  freely  and 
voluntarily,  without  any  threats  or  compulsion  on  the 
part  of  her  husband  or  any  other  person.  Witness  my 
hand  and  seal,  the  day  and  year  above  written. 

Sect.  49.  In  all  cases  where,  in  consequence  of  pro- 
ceedings in  partition,  the  share  or  any  part  thereof  of  an 
the  purpa'rts'"  ^^^^  ^^  ^^^^  estate,  shall  be  converted  into  money,  either 
of  heirs.  by  reason  of  the  impracticability  or  inequality  of  parti- 

tion, or  by  virtue  of  a  sale  or  otherwise,  the  Orphans' 
Court,  before  making  a  final  decree  confirming  the  par- 
tition or  sale  as  aforesaid,  may  appoint  a  suitable  person 
as  auditor,  to  ascertain  whether  there  are  any  liens  or 
other  incumbrances  on  such  real  estate,  affecting  the  in- 
terests of  the  parties;  and  if  it  shall  appear  by  the  report 
of  such  auditor  or  otherwise,  that  there  are  such  liens,  the 
said  court  may  order  the  amount  of  money  which  may  be 


Proceedings 
where  there 


ORPHANS'  COURTS. 


kxxi 


payable  to  any  of  the  parties  against  whom  liens  exist,  to 
be  paid  into  the  court,  and  shall  have  the  like  power  as 
to  the  distribution  thereof  among  lien  creditors  or  others, 
as  is  now  exercised  by  the  courts  of  common  law  where 
money  is  paid  into  court  by  sheriflfs  or  coroners;  and 
where  recognizances  or  other  security  shall  be  given  for 
the  payment  of  money,  the  court  may  make  an  order  on 
the  party  giving  such  recognizances  or  other  security,  to 
pay  the  amount  thereof  into  court,  when  the  same  shall 
become  due,  to  be  distributed  in  like  manner  among  the 
persons  holding  liens  at  the  time  of  the  partition. 

Sect.  50.  Where  a  recognizance  hath  heretofore  been,  Satisfaction  to 
or  shall  hereafter  be  taken  in  any  Orphans'  Court,  on  the  fj^^^^^Xna 
acceptance  of  the  real  estate  of  a  decedent  at  the  valua-  recognizance 
tion  or  appraisement  thereof,  as  herein  before  provided  is  discharged, 
for,  and  the  same,  or  any  part  thereof,  shall  be  satisfied 
or  paid  to  the  person  or  persons  interested  therein,  his, 
her  or  their  agent  or  attorneys,' any  such  persons  so  hav- 
ing received  satisfaction  of  the  amount  coming  to  him, 
shall  enter  an  acknowledgment  thereof  upon  the  record 
of  such  court,  which  shall  be  satisfaction  and  discharge  of 
the  said  recognizance,  to  the  amount  acknowledged  to  be 
paid;  and  the  recognizance  shall  cease  to  be  a  lien  on  the 
real  estate  of  the  conusor  to  a  greater  amount  than  the 
principal  and  interest  actually  remaining  due. 

Sect.  51.  If  any  person  who  shall  have  received  satis-  Penalty  for 
faction  as  aforesaid,  for  his  claim  or  lien,  secured  by  such  ""is^facUon! 
recognizance,  shall  neglect  or  refuse  to  enter  upon  the 
record  his  acknowledgment  thereof,  upon  the  written  re- 
quest of  the  owner  of  the  premises,  bound  by  such  recog- 
nizance or  of  any  part  thereof,  or  of  his  legal  representa- 
tives or  otlier  person  interested  therein,  on  tender  of  all 
the  costs  for  entering  such  acknowledgment  within  sixty 
days  after  such  request  and  tender  as  aforesaid,  such  per- 
son, for  every  such  default,  shall  forfeit  and  pay  to  the 
party  aggrieved  the  sum  of  fifty  dollars,  absolutely,  and 
any  further  sum  not  exceeding  the  amount  by  such  per- 
son received,  as  shall  be  assessed  by  a  jury  on  a  trial  at 
law;  or  the  Orphans'  Court,  on  due  proof  to  them  made 
that  the  entire  amount  due  to  any  heir,  legatee,  or  dis,- 
tributee,  shall  have  been  fully  paid  and  discharged,  may 
make  an  order  for  the  relief  of  such  person  from  any  re- 
cognizance or  other  recorded  lien;  which  order,  being 
certified  to  the  proper  court  where  such  lien  may  appear, 
shall  be  entered  on  their  records,  and  shall  enure  and  be 
receiyed  as  a  full  satisfaction  and  discharge  of  the  game. 

Sect.  52.  In  all  cases  in  which  heirs,  legatees,  or  dis-  Notices  to 
ti-ibutees  are  interested,  and  in  consequence  of  such  in-  1*^^^"^;^,^,^;. 
terest  notice  shall  be  required  to  be  given  to  them,  or  ipiijuices, 
L 


IxXXii  ORPHANS'  COURTS. 

any  of  them,  of  any  proceedings  in  the  Orphans'  Court, 
such  notice  shall  in  all  cases  be  given  in  the  manner  fol- 
lowing, except  in  the  case  of  the  accounts  of  executors  or 
administrators,  and  other  cases  specially  provided  for, 
viz:  To  all  persons  resident  within  the  county  in  which 
the  court  has  jurisdiction,  notice  shall  be  given  person- 
ally, or  by  writing  left  at  their  place  of  abode;  to  all  per- 
sons resident  without  the  county,  personal  notice  as  afore- 
said shall  be  given,  if  in  the  opinion  of  the  court  such 
notice  be  reasonably  practicable;  if  otherwise,  by  publica- 
tion in  such  one  or  more  newspapers  as,  in  the  opinion  of 
the  court,  will  be  most  likely  to  meet  the  eye  of  those 
entitled  to  notice. 
Notices  inthe  Sect.  53.  In  all  cases  in  which  proceedings  maybe 
case  of  mi-  \^^^  [^  i\^q  Orphans'  Court,  affecting  the  interest  of  any 
minor,  notice  of  such  proceedings  shall  be  given  to  the 
guardian  of  such  minor,  if  such  guardian  be  resident 
within  the  county,  or  within  forty  miles  of  the  seat  of 
justice  of  the  county,  in  the  same  manner  as  is  herein 
provided  for  ii*  the  case  of  resident  persons  of  full  age; 
but  if  such  minor  have  no  guardian,  it  shall  be  the  duty 
of  the  party  making  application  to  the  Orphans'  Court, 
to  cause  notice  of  such  application  to  be  given  to  the 
minor,  if  above  the  age  of  fourteen  years,  or  if  under  that 
Proviso.  age,  to  the  next  of  kin  Of  full  age:  Provided  such  minor, 
or  next  of  kin,  be  resident  within  the  county,  or  within 
forty  miles  of  the  seat  of  justice  thereof;  and  if,  at  the 
next  session  of  the  Orphans'  Court,  application  shall  not 
have  been  made  on  the  part  of  such  minor,  praying  for 
the  appointment  of  a  guardian,  it  shall  be  the  duty  of  the 
court  to  appoint  a  suitable  person  as  guardian,  on  whom 
notice  shall  be  served  in  all  cases  in  which  notice  shall 
be  requisite.  .  ; 
Notice  of  the  Sect.  54.  Whenever,  by  the  provisions  of  this  act,  it 
sale  of  real  shall  be  lawfijl  fof  the  Orphans'  Court  to  order  the  sale 
estate.  Qf  j.gjjj  estate,  public  notice  of  such  sale  shall  be  given  by 

the  executor,  administrator  or  guardian,  as  the  case  may 
be,  at  least  twenty  days  before  the  day  appointed  there- 
for, by  advertisement  in  at  least  one  newspaper  published 
in  the  county,  if  there  be  one,  or  if  there  be  none,  then 
in  an  adjoining  county;  and  in  all  cases,  notice  shall  also 
be  given  by  handbills,  affixed  in  at  least  three  of  the  mpst 
public  places  in  the  vicinity  of  such  estate. 
Power  to  send      Sect.  55.  The  Orphans'  Court  shall  have  power  to 
an  issue  to  ti»e  send  an  issue  to  the  Court  of  Common  Pleas  of  the  samel 
Pleas.  county,  for  the  trial  of  facts  by  a  jury,  whenever. they 

shall  deem  it  expedient  so  to  do. 
Powtt-toex-        Sect.  56.   The  Orphans'   Court'  or  any  auditors  ap- 
amine  ac-       pointed  by  them,  shall  have  power  to  examine  on  oath  or 


ORPHANS'  COURTS.  IxXXlii 

affirmation,  any  of  the  parties  to  any  proceedings  insti-  countants,  &c. 
tuted  in  sucli  court,  respecting  any  matter  in  dispute  in  ^"^  °^^'^'  'J"'* 
such  proceedings,  and  the  said  court  shall  have  power  to  production  of 
compel  the  production  of  any  books,  papers,  or  other  books  and 
documents,  necessary  to  a  just  decision  of  the  question  l**?*^^*- 
before  them,  or  before  auditors. 

Sect.  57.  The  mannfer'of  proceeding  in  the  Orphans'  Process  of  the 
Court,  to  obtain  the  appearance  of  a  person  amenable  to  Oi"pha»s' 
its  jurisdiction,  and  to  compel  obedience  to  its  orders  and 
decrees,  shall  be  as  follows: 

§1.  On  the  petition  to  the  court,  of  any  person  inter- 
ested, whether  such  interest  be  immediate  or  remote,  set-, 
ting  forth  facts  necessary  to  give  the  court  jurisdiction, 
the  specific  cause  of  complaint,  and  the  relief  desired  and 
supported  by  oath  or  affirmation,  the  Orphans'  Court,  or 
any  judge  thereof  in  vacation,  may  award  a  citation  re- 
turnable at  a  day  certain,  not  less  than  ten  days  after  the 
issuing  thereof. 

§11.  Such  citation  may  lie  served  by  the  party  obtain- 
ing the  same,  or  by  any  authorized  agent,  or  if  required 
by  the  party,  it  shall  be  served  by  the  sheriff  or  coroner, 
as  the  case  may  require,  of  the  proper  county. 

§111.  The  manner  of  service  shall  be  by  giving  a  copy 
thereof  to  the  defendant  personally,  or'by  leaving  such 
copy  with  some  member  of  his  family,  at  his  last  place 
of  abode. 

§IV.  If  the  defendant  be  not  found,  and  have  no 
known  dwelling-place  within  the  county,  such  citation 
may  be  served  in  like  manner  upon  the  person  or  per- 
sons, who  may  be  the  surety  or  sureties  of  such  party,  in 
any  bond  or  recognizance  given  by  him  for  the  perform- 
ance of  any  trust  or  duty  in  respect  to  which  such  cita- 
tion may  have  issued. 

§V.  The  return  to  a  citation,  if  made  by  the.  party  on 
whose  petition  it  issued,  or  his  agent  as  aforesaid,  shall  be 
on  oath  or  affirmation,  and  in  all  cases  of  service,  the  re- 
turn shall  state  how  such  citation  was  served. 

§  VI.  If  the  party  to  be  cited  cannot  be  found,  and  have 
no  known  dwelling-place  within  this  commonwealth,  and 
there  is  no  surety  on  whom  service  of  the  citation  can  be 
made  as  aforesaid,  and  the  facts  shall  be  so  stated  in  the 
return  on  oath  or  affirmation  by  the  party  complaining, 
or  by  some  one  competent  to  make  affidavit  in  that  be-  • 
half,  the  Orphans'  Court  may  award  another  citation,  re- 
turnable in  like  manner  with  the  first. 

§VI1.  At  the  time  of  awarding  such  second  citation, 
the  court  may  make  an  order  for  publication  of  the  same 
in  two  or  more  newspapers,  to  be  designated  by  the  court 
in  such  place  or  places  and  for  such  length  of  time  as  the 


IxXXiv  ORPHANS'  COURTS. 

court,  having  regard  to  the  supposed  place  of  residence  of 
the  defendant,  and  other  circumstances,  shall  direct. 

§VIII.  At  the  time  apj)ointed  for  the  appearance  of 
the  defendant,  should  he  not  appear,  according  to  the 
requisition  of  the  citation,  and  if  due  proof  be  made  of 
the  service  thereof,  or  when  service  cannot  be  made,  of 
the  publication  thereof,  as  hereinbefore  prescribed,  the 
court*  may,  with  or  without  another  citation,  as  justice 
may  require,  proceed  to  make  such  order  or  decree  in 
*  respect  to  the  subject  matter  as  may  be  just  and  necessary. 

§1X.  It  shall  be  lawful  for  the  court,  on  such  proof,  to 
£)rder  that  the  petition  of  the  complainant  be  taken  a& 
confessed,  and  to  direct  a  reference  to  an  auditor  or  audi- 
tors to  take  pVoof  of  the  facts  and  circumstances  set  forth 
in  the  petition,  and  to  report  thereon,  and  also  to  report 
an  account  against  such  defendant  if  necessary. 

§X.  On  the  report  of  the  auditor  or  auditors,  the  court 
shall  make  such  order  or  decree  thereon  as  may  be  just 
and  necessary. 

§XI.  Compliance  with  an  order  or  decree  of  the  court 
may  be  enforced  by  attachment  or  sequestration,  ol:*  in 
case  of  a  decree  for  the  payment  of  money,  against  a 
party  who  has  appeared,  the  complainant  may  have  a  writ 
of  execution  in  fhe  nature  of  a  writ  of  fieri  facias,  which 
writs  may  be  allowed  by  the  court  or  by  any  judge 
thereof,  in  vacation. 

§XII.  Writs  of  attachment  and  sequestration  shall  be 
directed  to  and  executed  by  the  sheriff  or  coroner,  as  the 
case  may  require,  of  the  proper  county. 

§XIII.  Writs  of  sequestration  shall  be  in  the  follow- 
ing form: 

The  Commonwealth  of  Pennsylvania, 
To  the  sheriff  of  the  county  of  Greeting: 

Form  of  writ.  Whcreois,  A.  B.  (here  set  out  the  decree,  or  so  much 
thereof  as  is  material  to  explain  the  duty  to  be  per- 
formed.) Therefore  we  command  you  that  you  do,  at 
proper  and  convenient  hours  in  the  day  time,  go  to  and 
enter  upon  all  the  messuages,  lands,  tenements,  and  real 
estate  of  the  said  A.  13.,  and  that  you  do  collect,  take, 
and  get  into  your  hands,  not  only  the  rents,  issues,  and 
profits  of  all  his  said  real  estates,  but  also  all  his  goods, 
chattels,  and  personal  estate,  and  detain  and  keep  the 
same  under  sequestration  in  your  hands;  and  also  that 
you  attach  all  stocks  held  by  him  in  incorporated  com- 
panies, and  keep  the  same  under  attachment  until  our 
said  Orphans'  Court  shall  make  other  order  to  the  con- 
trary; and  you  are  to  return  with  this  writ  an  inventory 
or  schedule  of  the  property  you  have  sequestrated  or  at- 
tached, and  a  certificate  under  your  hand  of  the  manner 


ORPHANS'  COURTS 


Ixxxv 


in  which  you  shall  have  executed  this  writ,  to  our  said 
court,  on  the  day  of 

next.     Witness,  &c. 

§XIV.  A  sequestration  shall  not  abate  by  the  death  of 
the  complainant  or  defendant. 

§XV.  It  shall  be  the  duty  of  the  sheriff  or  coroner,  as 
the  case  may  be,  immediately  after  receiving  any  such 
writ  of  sequestration,  to  file  a  copy  thereof  in  the  office  of 
the  prothonotary  of  the  Court  of  Common  Pleas  of  the 
same  county,  who  shall,  forthwith,  enter  the  substance 
thereof  on  his  docket,  with  the  names  of  the  parties,  and 
the  entry  thereof  shall  thenceforward  operate  to  charge 
the  real  estate  of  the  defendant,  according  to  the  form 
and  effect  of  such  writ,  and  shall  bind  the  same  in  the 
hands  of  all  purchasers  and  mortgagees,  subsequently  to 
such  entry,  without  other  notice:  Provided,  That  if  such 
sequestration  shall  be  dissolved  by  the  order  of  the  Or- 
phans' Court,  the  defendant,  or  any  person  interested  in 
such  real  estate,  may  have  a  certificate  of  the  same  from 
the  clerk  of  the  said  court,  which  it  shall  be  the  duty  of 
such  clerk  to  furnish,  on  application,  and  which,  being 
entered  on  the  docket,  shall  have  the  effect  of  a  satisfac- 
tion of  such  lien. 

§XVL  Writs  of  fieri  facias  shall  be  directed  to,  and 
executed  by  the  sheriff  or  coroner,  as  the  case  may  re- 
quire, "of  the  proper  county,  and  the  proceedings  thereon 
shall  be  the  same  as  on  writs  of  fieri  facias  issued  by  the 
Court  of  Common  Pleas  of  the  same  county. 

§XVII.  When  proof  shall  be  made  on  oath  or  affirma- 
tion, to  the  satisfaction  of  the  court,  if  in  session,  or  to  any 
judge  thereof  in  vacation,  at  the  time  of  filing  a  petition 
as  aforesaid,  that  the  defendant  has  absconded,  or  is  about 
to  abscond  or  depart  from  his  usual  place  of  abode,  to  the 
prejudice  of  the  complainant,  it  shall  be  lawful  for  the 
court  or  for  such  judge  to  allow  the  issuing  of  a  writ  of 
attachment,  or  a  writ  of  sequestration,  or  both  in  the  first 
instance,  against  such  defendant,  and  on  the  return  there- 
of, the  like  proceedings  may  be  had  as  are  authorized  on 
the  return  of  a  citation. 

§XVIII.  If  such  attachment  or  sequestration,  issued  in 
the  first  instance,  be  executed,  the  court,  or  any  judge 
thereof  in  vacation,  may  dissolve  the  same,  on  the  de- 
fendant giving  security,  to  the  satisfaction  of  the  court, 
or  of  such  judge,  to  appear  on  a  day  certain,  to  answer  to 
the  petition  and  to  abide  the  orders  and  decrees  of  the  . 
court  in  the  premises. 

§XIX.  When  proof  shall  be  made  on  oath  or  affirma- 
tion, to  the  satisfaction  of  the  court,  or  of  any  judge 
thereof  in  vacation,. at  the  time  of  presenting  a  petition. 


I.VXXVl  ORPHANS'  COURTS. 

or  at  any  stage  of  the  cause,  that  the  defendant  therein 
named  has  hi  his  possession,  trust,  property  or  eflccts, 
which  he  is  wasting,  or  otherwise  disposing  of  contrary 
to  his  duty  and  trust,  or  that  he  is  about  to  abscond,  and 
carry  such  trust,  property  or  effects,  out  of  the  jurisdic- 
tion of  the  court,  it  shall  be  lawful  for  the  court,  or  such 
judge  in  vacation,  to  award  a  writ  in  the  name  of  the 
commonwealth,  to  the  sheriff' or  coroner,  as  the  case  may 
require,  of  the  proper  county,  returnable  on  a  day  cer- 
tain, to  an  Orphans'  Court,  to  be  convened  for  the  pur- 
pose, if  the  said  court  shall  not  then  be  in  session,  com- 
manding him  to  take  possession  of  all  such  trust,  property 
and  effects  specified  in  such  writ,  and  to  hold  the  same 
subject  to  the  order  of  the  court;  and  also,  to  attach  all 
debts  due  to  such  trust,  whether  by  bond,  mortgage  or 
otherwise,  and  all  stocks  in  incorporated  companies,  and 
serve  a  copy  of  such  writ  upon  each  debtor,  and  upon 
each  company  in  which  stock  may  be  held,  belonging  to 
the  trust  as  aforesaid:  Provided,  That  before  the  execu- 
tion of  such  writ,  the  sheriff  or  coroner,  as  the  case  may 
be,  may  require  of  the  party  at  whose  instance  such  writ 
may  have  been  issued,  sufficient  security  to  indemnify 
him  against  any  damages  arising  from  the  execution 
thereof:  Jind  provided  also,  That  if  the  party,  against 
whom  such  writ  may  issue,  shall  give  sufficient  security 
to  such  sheriff'  or  coroner,  that  the  trust,  property  or 
effects  specified  in  such  writ,  shall  be  forthcoming  at  the 
return  thereof,  then  such  sheriff  or  coroner  shall  not 
execute  the  same,  but  shall  make  return  of  the  facts  to 
the  court. 

§XX.  The  like  proceedings  may  be  had,  where  the 
court  has  made  a  final  order  and  decree,  for  the  delivery 
of  the  trust,  property  and  effects  by  the  defendant  to  any 
persons,  who  may  be  designated  by  law,  or  by  the  order 
of  the  court,  to  receive  them. 

§XXI.  On  the  return  of  such  writ,  the  court  may  take 
such  order  respecting  the  disposition  of  such  trust,  pro- 
perty and  effects,  as  may  be  necessary  and  proper,  accord- 
ing to  the  principles  of  justice  and  equity.     . 

§XXII.  When  a  decree  shall  have  been  had  against' 
any  defendant,  who  shall  not  have  appeared  according  to 
the  requisitions  of  the  citation,  and  a  sequestration  shall 
have  issued  against  the  real  or  personal  estate  of  such  de- 
fendant, the  court  may  order  the  decree  to  be  satisfied  out 
of  the  estate,  and  effects  sequestrated:  Provided,  Thai 
such  order  shall  not  be  carried  into  execution,  until  the. 
complainant  shall  have  given  security  to  the  satisfaction 
of  the  court  to  abide  the  order  of  the  court,  touching  the 
restitution  of  what  he  may  have  received,  in  case  the  de- 


ORPHANS'  COURTS.  IxXXVll 

fendant  shall  appear,  and  be  admitted  to  defend  the  suit; 
but  if  such  security  shall  not  be  given,  the  estate  and 
effects  sequestered,  or  the  proceeds  thereof,  shall  remain 
subject  to  the  directions  of  the  court,  to  abide  its  further 
order. 

§XXIII.  If  the  defendant  against  whom  such  decree 
shall  have  been  made,  or  his  representatives,  shall,  within 
one  year  after  personal  notice  of  such  decree,  and  within 
five  years  after  the  entry  thereof,  when  no  such  notice 
shall  have  been  given,  present  a  petition  to  the  same  court 
praying  to  be  admitted  to  be  heard,  and  shall  pay  such 
costs  as  the  court  shall  adjudge,  the  party  so  petitioning 
shall  be  admitted  to  a  defence,  and  the  case  shall  then 
proceed  in  like  manner  as  if  such  defendant  had  appeared 
in  due  season,  and  no  decree  had  been  made. 

§XXIV.  If  such  defendant  or  his  representatives,  shall 
not  within  such  period  present  a  petition  as  aforesaid,  the 
court  may  make  such  final  order  and  decree,  both  in  re- 
spect to  any  estate  or  effects  that  may  have  been  seques- 
tered, and  in  respect  to  the  matters  in  controversy  in  the 
case,  as  may  be  according  to  justice  and  equity,  and  may, 
if  necessary,  award  a  writ  in  the  nature  of  a  fieri  facias, 
in  the  manner  herein  before  provided,  as  in  the  case 
where  the  defendant  appears. 

§XXV.  When  any  executor,  administrator  or  guar- 
dian, shall  reside  or  move  out  of  the  county  in  which  his 
appointment  shall  have  taken  place,  or  shall  not  possess 
real  or  personal  estate  in  such  county,  sufiicient  to  satisfy 
any  decree  or  order  of  the  Orphans'  Court  of  such  county, 
it  shall  be  lawful  for  the  Orphans'  Court  of  such  county 
to  issue  process  to  the  county  in  which  such  executor, 
administrator  or  guardian  may  be,  or  in  which  he  may 
have  any  real  or  personal  estate,  amenable  to  such  pro- 
cess, and  such  process  shall  be  executed  by  the  sheriff  or 
coroner,  as  the  case  may  require,  of  the  county  in  which 
such  executor,  administrator  or  guardian  may  be,  or  may 
possess  real  or  personal  estate  as  aforesaid. 

Sect.  58.    The  several  Orphans'   Courts  shall   have  Practice  of 
power  to  fix  the  return  days  of  all  processes  issuing  out  of  ^^^  Orphans' 
the  respective  courts,  whenever  such  return  days  are  not 
otherwise  provided  for  by  law,  and  from  time  to  time  to 
make  rules  for  the  regulation  of  the  practice  of  such 
courts,  not  inconsistent  with  this  act. 

Sect.  59.  Any  person  aggrieved  by  a  definitive  sen-  Appeal  to  the 
tence  or  decree  6f  the  Orphans'  Court,  may  appeal  from  Supreme 
the  same  to  the  Supreme  Court:    Provided,  That  the  proviso. 
party  appealing  shall  give  security  by  recognizance  with  Security  to  be 
sufficient  surety,  in  the  Orphans'  Court,  or  before  one  of  ^'^'^"'    '^' 
the  judges  thereof,  conditioned  to  prosecute  such  appeal 


IxXXviii  ORPHANS'  COURTS. 

with  effect,  and  to  pay  all  costs  that  may  "be  adjudged 
against  him,  and  shall  make  oath  or  affirmation  that  the 
appeal  is  not  intended  for  delay:  which  appeal,  thence- 
forth, shall  stay  all  proceedings  in  the  Orphans'  Court, 
until  the  same  be  determined  in  the  Supreme  Court,  and 
the  record  be  remitted  to  the  Orphans'  Court:  no  appeal 
shall  be  allowed,  unless  the  same  be  entered  and  security 
given  within  three  years  after  the  final  decree  of  the  Or- 
2d  proviso,  phans'  Court:  Jind- provided,  That  no  reversal  or  modi- 
fication of  any  decree  or  proceedings  of  the  Orphans' 
Court  for  the  sale  of  real  estate,  shall  have  the  effect  of 
divesting  any  estate  or  interest  acquired  under  such  de- 
cree or  proceedings,  by  persons  not  party  thereto,  where 
the  Orphans'  Court  had  jurisdiction  of  the  case. 
Fees  of  Sect.  60.   The  fees  to  be  taken  by  the  sheriffs  of  each 

dutiefre  uir-  ^ounty,  for  the  services  enjoined  by  this  act,  shall  be  the 
ed  by  this  act  Same  as  those  already  allowed  for  like  services;  and  for 
executing  a  writ  of  sequestration  the  same  fees  shall  be 
allowed  as  upon  a  writ  of  foreign  attachment,  together 
with  reasonable  costs  and  expenses,  according  to  tbe  dis- 
cretion of  the  court;  on  all  writs  and  process  sent  from 
another  county,  no  mileage  shall  be  allowed,  except  for 
the  distance  actually  travelled,  but  an  allowance  shall  be 
made  for  the  transmission  of  such  writs  and  process,  to 
the  clerk  of  the  court  from  which  they  may  have  issued, 
at  the  common  rates  of  postage. 
Time  of  ope-       Sect.  6l.  This  act  shall  take  effect  on  the  first  Mon- 
ration  of  act.  ^^^  jj^  August  next,  and  so  much  of  any  law  as  is  altered 
by  this  act,  is  hereby  repealed  from  that  period. 

JOHNLAPORTE, 

Speaker  of  the  House  of  Representatives. 

WM.  G.  HAWKINS, 

Speaker  of  the  Senate. 

Approved — The  twenty-ninth  day  of  March,  Anno 
Domini,  eighteen  hundred  and  thirty-two. 

GEO.  WOLF. 


AN  ACT 


RELATING  TO  LAST  WILLS  AND  TESTAMENTS. 


Sect.  1.  Be  it  enacted  by  the  Senate  and  House  of 
Representatives  of  the  Commonwealth  of  Pennsylva- 
nia in  General  Assembly  met.  That  every  person  of  General  right 
sound  mind,  married  women  excepted,  may  dispose  by  wili,'^^°^^  ^ 
will  of  his  or  her  real  estate,  whether  such  estate  be  held 
in  fee  simple,  or  for  the  life  or  lives  of  any  other  person 
or  persons,  and  whether  in  severalty,  joint  tenancy,  or 
common,  and  also  of  his  or  her  personal  estate. 

Sect.  2.    Provided,   That  a   married   woman    may.  Disposal  of 
under  a  power  legally  created  for  the  purpose,  dispose  of  ^^'^^^'^  ^i 
her  real  or  personal  estate  by  will  or  appointment,  in  na-  men. 
ture  of  a  will,  and  that  any  married  woman  may,  with 
the  assent  or  licence  of  her  husband,  dispose  of  her  per- 
sonal estate  by  will. 

Sect.  3.  Jind  provided  also,   That  no  will  shall  be  Age  of  testa- 
effectual  unless  the  testator  were  at  the  time  of  making  °'" 
the  same,  of  the  age  of  twenty-one  years,  or  upwards,  at 
which  age  the  testator  may  dispose  of  real  as  well  as  per- 
sonal or  mixed  property,  if  in  other  respects  competent 
to  make  a  will. 

Sect.  4.  Every  person  competent  to  make  a  will  as  Guardianship 
aforesaid,  being  the  father  of  any  minor  child  unmarried,  ci,iij|.e°'^ 
may  devise  the  custody  of  such  child  during  his  or  her 
minority,  or  for  any  shorter  period. 

Sect.  5.  The  emblements  or  crops  growing  on  lands  Disposal  of 
held  by  a  widow  in  dower,  or  by  any  other  tenant  for  |™ps"fs  pg^. 
life,  may  be  disposed  of  by  will  as  other  personal  estate;  sonai  estate. 
also  rents  and  other  periodical  payments  accruing  to  any 
such  tenant  for  life,  or  to  any  other  person  entitled  under 
the  laws  of  this  Commonwealth  regulating  the  descent 
and  partition  of  real  estate,  may,  so  far  as  the  same  may 
have  accrued  on  the  day  of  the  deatii  of  such  tenant,  for 
life,  or  other  person,  be  disposed  of  by  will  in  like 
manner. 
M 


xc 


LAST  WILLS  AND  TESTAMENTS. 


^X  ills  to  be 
vritti'ii  and 
provi'd  on 
oath,  &c. 


nvinciipative 
wills. 

Place  of  mak 
insr  will. 


Sect.  6.  That  every  will  shall  be  in  writing,  and  un- 
less the  person  makinji;  tlie  same  shall  be  prevented  by 
the  extremity  of  his  last  sickness,  shall  be  signed  by  him 
at  the  end  thereof,  or  by  some  person  in  his  presence, 
and  by  his  express  direction,  and  in  all  cases  shall  be 
proved  by  the  oaths  or  affirmations  of  two  or  more  com- 
petent witnesses,  otherwise  such  will  shall  be  of  no  effect. 
Of  the  dispo-      Sect.  7.  Provided,  That  personal  estate  may  be  be- 
sal  of  person-  Queathcd  bv  a  nuncupative  will,  under  the  following  re- 
al estate  by         »    .     .  •' 

strictions: 

I.  Such  will  shall  in  all  cases  be  made  during  the  last 
sickness  of  the  testator,  and  in  the  liouse  of  his  haljitation 
or  dwelling,  or  where  he  has  resided  for  the  space  of  ten 
days  or  more,  next  before  the  making  of  such  will,  ex- 
cept where  such  person  shall  be  surprised  by  sickness, 
being  from  his  own  house,  and  shall  die  before  returning 
thereto, 

II.  Where  the  sum  or  value  bequeathed  shall  exceed 
one  hundred  dollars,  it  shall  be  proved  that  the  testator, 
at  the  time  of  pronouncing  the  bequest,  did  bid  the  per- 
sons present,  or  some  of  them,  to  bear  witness  that  such 
was  his  will,  or  to  that  effect;  and  in  all  cases  the  fore- 
going requisites  shall  be  proved  by  two  or  more  wit- 
nesses who  were  present  at  the  making  of  such  will. 

This  act  not  Sect.  8,  ProfiV/ec/,  That  notwithstanding  this  act,  any 
to  aftect  ma-  mariner  being  at  sea,  or  any  soldier  being  in  actual  mili- 
or"soidkrsTn  tary  service,  may  dispose  of  his  moveables,  wages  and 
service,  personal  estate  as  he  might  have  done  before  the  making 

of  this  act. 

Sect.  9.  That  all  devices  of  real  estate  shall  pass  the 
whole  estate  of  the  testator  in  the  premises  devised,  al- 
though there  be  no  words  of  inheritance  or  of  perpetuity, 
dTof  per-  unless  it  appear  by  a  devise  over  or  by  words  of  limita- 


Witnesses 
bequests. 


Devise  of  real 
estate  to  pass 
the  whole 
without 


petuity. 


tion  or  otherwise,  in  the  will,  that  the  testator  intended 
to  devise  a  less  estate. 

Sect.  10.  That  the  real  estate  acquired  by  a  testator 
after  making  his  will,  shall  pass  by  a  general  devise, 
unless  a  contrary  intention  be  manifest  on  the  face  of  the 
will. 

Sect.  11.  That  a  devise  or  bequest  by  a  husband  to 
his  wife  of  any  portion  of  his  estate  or  property,  shall  be 
deemed  and  taken  to  be  in  lieu  and  bar  of  her  dower  in 
the  estate  of  such  testator,  in  like  manner  as  if  it  were  so 
expressed  in  the  will,  unless  such  testator  shall  in  his  will 
declare  otherwise:  Provided,  That  nothing  herein  con- 
tained shall  deprive  the  widow  of  her  choice  either  of 

dower  or  be-  dower,  or  of  the  estate  or  property  so  devised  or  be- 

l*^*^*'-  queathed. 


Estate  ac- 
quired  after 
luakinrr  will. 


Devise  to 
wife  to  bar 
dower  unless 
otherwise 
declared. 


Proviso. 
No  bar  to 
choice  of 


LAST  WILLS  AND  TESTAMENTS.  XCl 

Sect.  12.  That  no  devise  or  legacy  in  favour  of  a  child  Death  of   ^^^ 
or  other  lineal  descendent  of  any  testator,  shall  be  deem-  il^^^ffedl^of 
ed  or  held  to  lapse,  or  become  void,  by  reason  of  the  de-  testator  not  to 
cease  of  such  devisee  or  legatee,  in  the  life  time  of  the  fs'sue  of  bl-"^ 
testator,  if  such  devisee  or  legatee  shall  leave  issue  sur-  quest, 
viving  the  testator,  but  such  devise  or  legacy  shall  be 
good  and  available  in  favour  of  such  surviving  issue,  with 
like  effect  as  if  such  devisee  or  legatee  had  survived  the 
testator,  saving  always  to  every  testator  the  right  to  direct 
otherwise. 

Sect.  13.  That  no  will  in  writing  concerning  any  real  Of  repeals 
estate  shall  be  repealed,  nor  shall  any  devise  or  direction  *"  '^°  '^^  ^' 
therein  be  altered,  otherwise  than  by  some  other  will  or 
codicil  in  writing,  or  other  writing  declaring  the  same 
executed,  and  proved  in  the  same  manner  as  is  herein- 
before provided,  or  by  burning,  cancelling,  or  obliterating 
or  destroying  the  same  by  the  testator  himself,  or  by 
some  one  in  his  presence,  and  by  his  express  direction. 

Sect.  14.  That  no  will  in  writing  concerning  any  per-  Nuncupative 
sonal  estate  shall  be  repealed,  nor  shall  any  bequest  or  ^rUten^^wms, 
direction  therein  be  altered,  otherwise  than  as  is  herein  unless  com- 
before  provided  in  the  case  of  real  estate,  except  by  a  ^^"'^Jead^ai- 
nuncupative  will,  made  under  the  circumstances  afore-  lowed  and 
said,  and  also  committed  to  writing  in  the  life-time  of  the  proved, 
testator,  and  after  the  writing  thereof  read  to  or  by  him, 
and  allowed  by  him,  and  proved  to  be  so  done  by  two 
or  more  witnesses. 

Sect.  15.   That  when  any  person  shall  make  his  last  Widow  and 
will  and  testament,  and  afterwards  shall  marry  or  have  a  testator"niar- 
child  or  children  not  provided  for  in  such  will,  and  die  ried  and  bom 
leaving  a  widow  and  child,  or  either. a  widower  child  or  ^^^^i^t^f^herit 
children,  although  such  child  or  children  be  born  after  as  of  an  intes- 
the  death  of  their  father,  every  such  person,  so  far  as  tate. 
shall  regard  the  widow,  or  child  or  children  after  born, 
shall  be  deemed  and  construed  to  die  intestate,  and  such 
widow,  child  or  children,  shall  be  entitled  to  such  pur- 
parts, shares,  and  dividends  of  the  estate,  real  and  per- 
sonal, of  the  deceased,  as  if  he  had  actually  died  without 
any  will. 

Sect.  16.  That  a  will  executed  by  a  single  woman  J^/^^J^^  ^j,. 
shall  be  deemed  revoked  by  her  subsequent  marriage,  nui'iwrby  "' 
and  shall  not  be  revived  by  the  death  of  her  husband.        marriage. 

Sect.  17.  Provided,  That  nothing  in  this  act  contain-  Testators, 
ed  shall  be  construed  to  apply  to  the  disposition  of  per-  "°"  residents, 
sonal  estate  by  a  testator  whose  domicil  is  out  of  this 
Commonwealth. 

Sect.  18.  That  this  act  shall  take  effect  from  and  after  Time  of  ope- 
the  first  day  of  October  next,  and  so  much  of  any  act  or  '"''"""• 


XCll  LAST  WILLS  AND  TESTAMENTS. 

Rftpcaling       acts  of  Assembly  as  is  hereby  altered  or  supplied,  is  re- 
c  ause,    c.      pQ^le^l  fj-om  and  after  the  said  day,  except  so  far  as  may 
be  necessary  to  complete  any  proceeding  commenced  be- 
fore that  time. 

SAM'L.  ANDERSON. 
Speaker  of  the  House  of  Representatives. 

'      THO'S.  RINGLAND. 

Speaker  of  the  Senate. 

Approved — The  eighth  day  of  April,  Anno  Domini, 
eighteen  hundred  and  thirty-three. 

GEO.  WOLF. 


THE 


LAW   OF   EXECUTORS 


ADMINISTRATORS. 


BOOK   I. 

OF  THE  APPOINTMENT  OF  EXECUTORS  AND  ADMINISTRATORS. 


CHAR  I. 

OF  WILLS  AND  CODICILS WHO  MAY  MAKE    THEM WHO    NOT HOW 

THEY  ARE  ANNULLED  OR  REVOKED HOW  REPUBLISHED. 

Betore  I  enter  on  the  subject  of  this  treatise,  I  shall  state  some 
general  propositions  in  regard  to  wills. 

A  will,  or  testament,  is  defined  to  be  the  legal  declaration  of  a 
party's  intentions,  which  he  directs  to  be  performed  after  his  death 

(a)  2  Bl.  Com.  499,  500. 


(1)  Per  Johnson  J.  1  M'Cords  Rep.  522.  2  Al'Coi-d's  Rep.  522.  Per  Jhmcan  J.  4 
Serg.  &  Rawle,  54G.  And  it  is  not  indispensahje  that  tlic  testator  should  originally  have 
executed  a  paper  as  and  for  a  will,  provided  he  afterwards  adopts  it  as  such;  therefore  if 
it  be  executed  as,  or  called  a  deed  in  the  body  of  it,  yet  if  made  with  a  view  to  the  disposi- 
tion of  a  man's  estate  upon  his  death,  it  will  enure  as  a  \vill.  Lyles  v.  J^yles,  2  Nott  is. 
M'Cord,  531.  Henry  v.  Ballard,  2  Car.  Law  Rep.  595.  See  AliUedge  v.  Lamar,  4 
Desaus.  Rep.  62.3.  Wiicn  a  testiment;iry  disposition  of  the  writer's  estate  is  inteiuled  to 
be  made  by  it,  a  letter  (JMorrell  v.  Dickei/,  1  Johns.  Cha.  Rep.  153)  or  memorandum  may 
be  a  will;  but  there  must  be  an  advised  purpose  shown  by  the  paper  to  make  a  present 
testamentary  disposition,  and  not  the  intention  to  do  some  future  act.  Stein  v.  JVorth,  3 
Yeates,  324.  M' Gee  r.  M' Cants,  1  M'Cord,  517.  Plumstead's  .'1ppeal,i  Serg.  k  Rawle, 
545.  Shiekk  v.  Irwin,  et.  al.  3  Yeates,  389.  Toner  v.  Tngg-art,  5  Binn.  490. 
1 


1  OF  WILLS  AND  CODICILS.  [bOOK  I. 

A  will  may  relate  cither  to  real,  or  to  personal  property.  In  the 
former  case  it  is  denominated  a  devise,  which  is  an  appointment  of 
a  person  to  take  in  the  nature  of  a  convey[2]ance,  altliough  fluctua- 
ting till  the  testator's  death,  and  will  pass  only  such  estate  as  he  was 
seised  of  at  the  time  of  making  it  (A);  the  right  to  devise  arising 
from  the  stat.  32  Hen.  8.  c.  1.  which  enacts,  that  persons  having 
lands  may  devise  the  same.  By  the  statute  of  frauds  and  perjuries, 
29  Cur.  2.  c.  3.(1)  it  shall  not  only  he  in  writing, (2)  but  signed  by 

(i)  4  Bac.  Abr.  2 12.   2  Bl.  Com.  .378,      Heath,  I  Ves.  141.     Brydges  v.  Duch. 
501.     Wind  V.  Jekyl,  1  P.  Wms.  575.      of  Chandos,2  Ves.  Jun.  427. 
Swift  V.  Roberts,  Amb.  619.     Okf  r. 


(1)  Passed  in  1676,  to  take  effect  from  and  after  June  24tli,  1677. 

(2)  In  Pennsylvania,  by  the  Act  of  Assembly  of  1705,  (Purd.  Dig.  800.,  1  Dall.  Laws, 
53.,  1  Sm.  Laws,  33.)  sect.  1.  it  is  provided  "  tliat  all  wills  in  writing  wherein  or  whereby 
any  lands,  tenements,  or  hereditaments,  within  this  province,  have  been,  are,  or  shall  be 
devised,  being  proved  by  two  or  more  credible  witnesses,  upon  their  solemn  affirmation, 
or  by  other  legal  proof  in  this  province,  or  being  proved  in  tlie  Chancery  in  England,  and 
tlie  bill,  answer,  and  depositions  transmitted  hither,  under  the  seal  of  that  Court,  or  being 
proved  in  the  hustings,  or  Mayor's  Court  in  London,  or  in  some  manor  Court,  or  before 
such  as  shall  have  power  in  England,  or  elsewhere,  to  t:ike  probates  of  wills,  and  grant 
letters  of  administration,  and  a  copy  of  such  will  with  the  probate  thereof  annexed  or 
indorsed,  being  transmitted  hither,  under  the  public  or  common  seal  of  the  Courts  or  of- 
fices where  the  same  have  been  or  shall  be  taken  or  granted,  and  recorded  or  entered  in 
the  Ren-ister-general's  office  in  this  province,  shall  be  good  and  .available  in  law,  for  the 
granting,  conveying  and  assuring  of  the  lands  or  hereditaments  thereby  given  or  devised, 
as  well  as  of  the  goods  and  chattels  thereby  betjueathed;  and  the  copies  of  all  wills,  and 
probates,  under  the  public  seals  of  the  CoiU'ts  or  offices  where  the  same  have  been  or  shall 
be  taken  or  granted  respectively,  other  th.in  copies  or  probates  of  such  wills  as  shall  ap- 
pear to  be  annulled,  disapproved,  or  revoked,  shall  be  judged  and  deemed,  and  are  here- 
by enacted  to  be  matter  of  record,  and  shall  be  good  evidence  to  prove  the  gift  or  devise 
tlicreby  made;  and  all  such  probates,  as  well  as  all  letters  of  administration  granted  out 
of  lids  province,  being  produced  here,  under  tlie  seals  of  the  Courts  or  offices  granting  the 
same,  shall  be  as  sufficient  to  enable  tlie  executors  or  administi-ators,  by  themselves  or 
attorneys,  to  bring  tlieir  actions  in  any  court  w  itliin  this  province,  as  if  die  same  probates 
or  letters  testamentary  or  administrations  were  granted  here, and  produced  under  the  seal, 
of  the  Register-general's  office  of  this  province." 

Previous  to  the  passage  of  the  act  of  1705,  it  was  enacted  by  the  first  Assembly,  held  at 
Chester,  in  December  1682,  in  pursuance  of  the  laws  agreed  upon  in  England  in  March 
of  the  same  year,  "that  all  wills  in  writing,  attested  by  two  sufficient  witnesses,  shall  be 
of  the  same  force  to  lands  as  to  other  conveyances,  being  legally  proved  within  forty  days, 
either  within  or  without  die  province."  (Prov.  Laws.  App.  7.)  The  earliest  will  upon 
record  in  the  office  of  the  Register  of  Wills  at  Philadelphia,  is  that  of  William  Clarke^ 
dated  12th  of  May,  1681,  in  Book  A.  page  5,  which  is  executed  in  the  pi-esence  of  tw'O 
witnesses;  but  the  wills  on  record  in  the  same  book, bearing  date  in  1682,  1683,  are  gene- 
rally executed  in  the  presence  of  three  or  four  witnesses. 

It  has  been  decided  that  since  the  passage  of  the  act  of  1705,  it  is  not  necessary  to  con- 
stitute a  will,  even  of  lands,  that  it  should  be  sealed,  or  subscribed  by  witnesses,  nor  that 
the  proof  of  the  will  should  be  made  by  those  who  subscribed  as  witnesses,  nor  that  all 
the  subscribing  witnesses  should  prove  die  will.  Might  v.  Wilson,  1  Dall.  Rep.  94. 
Ardnt  v.  Arilnt,  1  Serg.  &  Rawle,  256.  It  is  only  necessary  th.-^t  it  should  be  reduced  to 
writing,  in  pursuance  of  his  direction  or  insti'uctions,  dm-ing  tlie  testator's  lifetime,  and 


CHAP.  I.]  OF  WILLS  AND  CODICILS.  2 

the  testator,  or  some  other  person  in  his  presence,  and  by  his  express 


these  facts  proved  by  two  witnesses;  signing  by  the  testator,  foumal  publication,  and  at- 
testation by  subscribing  witnesses,  being  unnecessary.  16  Serg.  &;  Rawle,  316-  Rossiter 
V.  Simmons,  6  Serg.  &  Rawle,  452.  JValmesley  v.  Read,  1  Yeates,  87.  But  it  is  not  ne- 
cessary that  the  will  should  be  read  to  the  testator,  [Rossiter  v.  Simmons.  Lewis  T. 
Lexvis,  6  Serg.  k  Rawle,  489,)  unless  some  reasonable  gi-ound  be  laid  for  considering  the 
circumstance,  that  it  was  not  read,  as  a  badge  of  fraud.  Harrison  \.  Rowan,  3  Wash. 
C.  C.  Rep.  580.  This  last  mentioned  decision,  it  is  to  be  observed,  however,  was  not 
made  with  a  reference  to  the  act  of  Assembly,  but  upon  a  will  of  lands  in  New  Jersey, 
where  the  decision  took  place.  Of  the  two  witnesses  to  a  will,  each  must  depose  sepa- 
rately to  all  facts  necessary  to  complete  the  chain  of  evidence,  so  that  no  link  of  it  may 
depend  upon  the  credibility  of  but  one,  and  if  the  act  of  Assembly  were  out  of  the  ques- 
tion, the  case  would  be  well  made  out  by  the  evidence  of  either;  and  circumstantial  proof 
cannot,  therefore,  be  made  by  two  or  more  witnesses  alternating  with  each  other,  as  to 
tlie  different  parts  of  the  aggregate  of  circumstances  which  are  necessary  to  make 
up  the  sum  of  proof,  the  evidence  of  each  not  going  to  the  whole.  Hock  v.  Hock,  6 
Serg.  &  Rawle,  47.  Reynolds  v.  Reijnolds,  16  Serg.  k  Rawle,  82.  Lexms  v.  JMaris,  1 
Dall.  Rep.  278.  But  where  verbal  instructions  were  given  by  A.  to  B.  to  draw  his  will, 
and  B.  procured  a  will  to  be  drawn  by  C.  exactly  conformable  to  the  instructions,  which 
will  B.  brought  to  the  testator,  who  was  too  unwell  to  sign  it,  and  died  about  two  hours 
afterwards  without  executing  it,  and  witliout  having  it  read  to  him,  and  the  testator  com- 
plained to  a  witness  on  the  day  he  died,  (but  whether  before  or  after  the  will  was  brought 
to  him  does  not  appear  by  the  report,  though  it  would  seem  from  what  he  said  that  it 
was  before,)  that  he  was  uneasy  that  his  will  Mas  not  perfected, mentioned  his  earnest  de- 
sire that  B.  should  draw  his  will,  and  that  he  had  given  him  special  instructions  for  that 
purpose,  which  he  repeated  to  him,  which  express  instructions  given  to  B.  by  the  deceased^ 
as  related  by  him  on  the  day.  he  died,  at  different  times  of  the  day,  were  proved  by  two 
witnesses,  and  the  testator's  recognition  on  the  day  of  his  death,  that  he  had  given  B.  di- 
rections to  draw  his  will,  was  proved  by  three  witnesses,  it  was  held,  in  a  J\'isi  Prins  case, 
that  the  will  drawn  by  C.  being  conformable  to  the  testator's  verbal  instructions,  was  a 
good  will  in  writing  under  the  act  of  Assembly  of  1705.  Walmesley  v.  Read,  1  Yeates, 
87.  One  witness,  thei-efore,  according  to  this  last  mentioned  case,  if  it  be  law,  may 
prove,  that  the  testator's  will  was  reduced  to  writing  by  the  witness's  procurement,  and 
its  conformity  with  the  instructions  of  the  testator;  and  other  witnesses  may  prove  the 
testator's  instructions  as  derived  from  himself,  and  their  identity  and  conformity  with  the 
contents  of  the  written  will  proved  by  the  first  witness,  though  the  declarations  of  the  tes- 
tator, as  to  what  the  instructions  for  his  will  were,  do  not  refer  to,  or  recognize  the  fact, 
that  to  his  knowledge  a  will  had  been  reduced  to  writing  in  conformity  with  his  instruc- 
tions, but  merely  show  what  his  will  is.  Two  recent  decisions  of  the  Supreme  Court, 
however,  have  settled  the  law  to  be,  that  where  one  witness  swears  to  the  preparation  or 
publication  of  a  paper  as  a  last  will,  proof  by  other  witnesses  of  declarations  by  the  testa- 
tor, that  he  had  made  a  will,  must,  in  order  to  establish  the  will,  be  of  declarations  made 
in  reference  to  that  particular  paper.  Hock  v.  Hock,  6  Serg.  8i  Rawle,  47.  Reynolds  v. 
Reynolds,  16  Serg.  &  Rawle,  82,  It  is  said  in  the  marginal  note  of  Eyster  v.  Young,  3 
Yeates,  5.11,  that "  though  a  will  of  lands  must  be  proved  regularly  by  two  witnesses,  yet 
circumstances  may  supply  the  want  of  one  witness,  where  they  go  directly  to  the  imme- 
diate act  of  disposition,"  This,  however,  is  taken  from  a  dictum  of  the  Court  in  charging 
the  jury,  and  there  v/as  no  necessity  in  that  case  for  havir%  recourse  to  such  doctrine, — 
which  is  not  very  intelligible, — for  the  instructions  of  the  testator  were  reduced  to  wri- 
ting, afterwards  read  to  him  in  the  presence  of  two  witnesses,  and  were  established  as  his 
will  in  preference  to  a  more  formal  will  prepared  for  tliem  by  the  witness  wlio  had  writ- 
ten down  the  testator's  Instructions,  but  which  differed  from  them  in  some  particulars, 
the  witness  who  took  the  instructions  having  trusted  for  some  things  to  his  memory.    The 


2  OF  WILLS  AND  CODICILS.  [bOOK  1. 

directions;  and  be  subscribed  in  his  presence  by  three  or  four  credi- 
ble witnesses  (rt).(l) 

But  the  actual  signature  of  the  testator  in  the  presence  of  the  three 
subscribing  witnesses,  is  not  required,  if  he  recognise  it  to  be  his 
signature  before  them.  (2)  Nor  is  it  necessary  that  the  three  subscri- 
bing witnesses  sJiould  be  togetlier  present,  at  the  time  of  the  execution. 
And  the  attestation  of  each  witness  separately  is  suiricicnt(6).(3.) 

(rt)  Vide  Ellis  v.  Smith,  1  Ves.  Jun.  (i)  Westbeech  v.  Kennedy,  1  Ves. 

II.  13roderick  v.  Eroderick,  1  P.  Wins.     &  Bea.  3(32. 
23'J.  and  Stonehouse  v.  Evelyn,  3  P. 
Wms.  251. 


same  docU-ine  is  stated  also  in  the  marginal  note  of  anotlicr  Alus  Priiis  case,  Boiulinni  v. 
Bradford,  2  Yeates,  iro.  2  DaU.  Kep.  2CC.  The  real  question  however  involved  iu  this 
last  case,  the  reports  of  whicli  are  very  unsatisfactory,  was  tlie  sanity  of  Uie  testator,  and 
his  intention  in  desti-oying  a  will;  which  one  witness,  his  nephew,  who  was  a  lawyer,  and 
had  read  it  to  the  testator  a  few  days  before  his  death,  with  tlie  view  to  take  his  instructions 
for  preparing  another  will,  swore  was  in  tlic  testator's  liandwriting,  and  which  another 
•witness,  tiie  testator's  sister,  swore  was  signed  by  him,  tliough  she  tliought  the  body  of  it 
■was  not  in  his  handwriting.  This  will  the  last  mentioned  witness  burned,  by  the  testator's 
directions,  after  he  had  torn  it  in  pieces;  and  he  stated  to  his  physician  that  he  had  de- 
stroyed it,  and  made  use  of  expressions,  and  did  certain  acts  evincing  his  determination 
to  die  intestate.  In  addition  to  tlie  proof  by  the  nephew  and  sister  of  the  testator,  the  re- 
port of  Judge  Te.ates  states  tlie  determination  of  the  testator  to  republish  tliis  will,  and 
make  an  alteration  in  one  of  tlie  devises,  by  a  codicil  annexed  thereto,  which  codicil  he 
subscribed,  and  published  in  the  presence  oifonr  witnesses,  but  which  he  destroyed  with 
the  will  to  which  it  was  annexed.  The  will  was  therefore  in  point  of  fact  proved  by  two 
•witnesses,  and  its  destruction  being  proved  by  one  witness  who  saw  tlie  fiict,  and  another 
to  whom  the  testator  stated  the  fact,  and  made  certain  declarations  evincing  his  intention 
in  so  doing,  all  tiiese  circumstances  were  left  to  the  jury,  who  found  that  the  desU-uction 
of  the  will,  with  the  view  to  die  intestate,  did  not  set  up  a  former  will,  as  to  the  execution 
of  which  there  was  no  doubt.  See  also  Reynolds  \.  Reynohk,  16  Serg.  &  Rawle,  82. 
The  words,  "  or  by  other  legal  proof  in  this  province,"  do  not  mean  less  proof  than  by  two 
•witnesses,  but  is  put  in  opposition  to  solemn  affirmalion^  in  order  to  admit  the  attestation 
of  an  oath.  Wesfs  Case,  before  the  Register  General  (Mr.  Chetv,  afterwards  Ch.  Jus- 
tice) in  1773,  cited  1  Dall.  Rep.  281.  Lexvis  v.  Maris,  1  Dall.  Rep!  2*8.  And  notwith- 
standing it  is  stated  in  JVestons  \  Stammers,  1  Dall.  Rep.  2,  that  "an  exemplification  of  a 
will,  made  in  England,  and  certified  generally  to  have  been  proved  in  the  Prerogative 
Court  of  Canterbury,  under  the  seal  of  tliat  Court,  was  allowed  to  be  readin  evidence," 
the  constant  understanding  and  practice  of  this  state  has  been,  that  no  matter  where  a  will 
is  made  and  proved,  if  it  concern  lands  in  Pennsylvania,  it  must  be  proved  by  two  wit- 
nesses; and  therefore  tlie  copy  of  a  will  of  land  lying  in  Pennsylvania,  made  in  New  York, 
proved  before  the  surrogate  of  New  York,  by  one  of  the  subscribing  witnesses,  who  also 
proved,  that  Uie  other  two  witnesses  attested  the  same  in  tlie  presence  of  the  testator,  tlie 
copy  being  authenticated  under  tlie  seal  of  the  surrogate's  office,  and  entered  in  the  Regis- 
ter General's  office  in  Pennsylvania,  is  not  admissible  in  evidence  in  tlie  Courts  of  Penn- 
sjlvania.     llylton  v.  Brovin,  \  Wash.  C.  C.  Rep.  299. 

(1)  Case  of  Cochraii's  Will,  3  Bibb's  Rep.  491.     Bw-ivell  v.  Corbin,  1  Rand.  Rep.  131. 

(2)  Le-cvis  V.  Ltnvis,  6  Serg!  &  Rawle,  496.     Case  of  Cochran's  Tf'ill.    Elbeck  v.  Gran- 
berry,  2  Hayw.  Rep.  232. 

(3)  Jicc.  (in  Pennsylvania)  Reynolds  v.  Reynolds,  Ifi  Scrg.  &  Rawle,  85-     Aliter  in  So.  ' 
Carolina,  Snelgrove  v.  Snelgrove,  Dunlap  v.  Dunlup,  4  Dessaus.  Rep.  274-  305.     Turnip- 


CHAP.  I.]  OF  WILLS  AND  CODICILS.  2 

«I,  A.  B.,  do  make  this  my  will,"  is  equivalent  to  signature,  and 
if  acknowledged  before  three  witnesses,  is  a  good  execution  within 
the  statu te(c).(l) 

If  the  witnesses  to  a  will  attest  the  execution  of  it  by  the  testator 
in  an  adjoining  room,  and  the  testator,  from  his  situation,  can  see 
them  attest  it,  it  is  a  good  attestation  within  the.  statute.  (2)  But  if 
the  testator  be  not  so  situated  that  he  can  see  them  attest  the  will,  it 
is  not  J  good  attestation  thereof  (^).  (3) 

The  wife  of  an  acting  executor  taking  no  beneficial  interest  under 
the  will,  is  a  competent  attesting  witness  to  prove  the  execution  of 
it,  within  the  description  of  a  credible  witness  (e).  (4) 

And  an  executor  clothed  with  a  trust  to  pay  debts,  and  to  lay  out 
money  for  the  benefit  of  the  testator's  children,  and  with  power  to 
sell  freehold  lands  in  fee,  but  taking  no  beneficial  interest  under  the 
will,  is  a  good  attesting  witness  to  it(y).(5.) 

A  will,  as  it  respects  personal  property,  is  an  indefinite  disposition 
of  all  the  testator  may  be  possessed  of  at  his  death(^),  inclusive  of 
chattel  leases,  whether  tliey  were  his  at  the  time  of  making  his  will 
or  not(//),  and  is  of  two  species,  written,  or  nuncupative:  if  of  the 
former,  it  may  be  committed  to  writing  either  by  the  testator  him- 
self, or  by  his  directions(e);  nor  is  the  affixing  of  his  seal  to  the  in- 

(r)  Morrison V.  Tumour,  18  Ves.  1S3.  (g)  Oke  v.  Heath,  1  Ves.  141.     All 

(e?)  Forrester  v.  Pigou,  1  Maul.  &  Souls'    Coll.    v.     Codrington,    1    P. 

Sel.  9.                                                    •  Wms.    598.     Brydges   v.    Duch.    of 

(e)  Bettison   v.  Bromley,  12  East,  Chaudos,  2  Tes.  jun.  427. 

250.  (/<)  Wind  v.  Jekyl,  1  P.  Wms.  575. 

(/)  Phipps  V.  Pitcher,  6  Taunt.  Rep.  («)  Huntingdon   v.  Huntingdon,    2 

220.     1  Madd.  Rep.  144.  Phill.  Rep.  213.  Sikes  v.  Snaith,  ib,  356. 

seedY.  Hawkiiis,  1  ISI'Cord's  Rep.  272.  See  Oie  note  to  C?'2«seV Digest,  vol.  vi.  page  63, 
2fd  Aip.  edition,  for  the  law  on  this  subject  in  the  several  states;  and  tlie  editor's  note  to 
IVestbeech  v.  Kennedy,  1  Ves.  &  Beam.  362.  Ara.  edit. 

(1)  Pearson  v.  Wightman,  2  Rep.  Const.  Court,  (So.  Carolina)  343.  The  6th  section  of 
the  Act  of  8th  April,  1833,  "  i-elating  to  last  wills  and  testaments  (Pampli.  Laws,  249),  pro- 
vides, "  that  every  will  shall  be  in  writing,  and  unless  the  same  shall  be  prevented  by 
the  extremity  of  liis  last  sickness,  shall  be  signed  by  him  at  the  end  thereof,  or  by  some 
person  in  his  presence,  and  by  his  express  direction,  and  in  all  cases  shall  be  proved  by 
the  oaths  or  affirmations  of  two  or  more  competent  witnesses;  othei-wise  such  will  shall  be 
of  no  effect. " 

(2)  JMason  v.  JIamson,  et  al.  5  Harr.  h  Johns.  480. 

(3)  Duntap'y.  Dunlap,  iVcsaus.  311.     Edelen  v.Jfardif's  Lessee,  7  Harr.  &  Johns.  61. 

(4)  Haivley  v.  Broivn,  1  Root's  Rep.  494.     See  16  Scrg.  &  Rawle,  8.5. 

(5)  Though  the  general  practice  of  the  English  Chancery,  to  admit  a  trustee  as  a  wit- 
ness, has  been  uniformly  adopted  in  Penns)  Ivahia  (IJriwi''s  Lessee  y.  S/ni/ison,  6  B'lnn. 
478,)  an  executor  who  is  plaintiff  in  a  feigned  issue  to  try  the  validity  of  a  will,  is  not  a 
competent  witness  in  support  of  the  will,  being  liable  for  costs.  Vansant  \.  Jioilean,  1 
Hum.  444.  ■  A  devisee,  not  a  party  to  the  issue,  who  attested  tlie  will,  is  a  good  witness  to 
prove  it,  if  before  the  trial  she  and  her  husband  transfer  their  interest,  and  receive  a  re- 
lease to  the  husl)and  of  all  actions  from  the.  ti'ansferee.  A'enis  v.  Sexman,  16  Sei-g.  and 
Rawle,  315.  Aad  the  wife  of  a  legatee,  or  the  husband  of  a  devisee,  .is  a  competent  m  it- 
ness  on  the  pro[icr  release  being  executed,  tlioiigh  it  be  not  accepted.     Bray  field  v-  Bray- 


«  1. 


,  • 


2  OP    WILLS    AND    CODICILS.  [bOOK  I. 

strumcnt,  nor  the  presence  of  witnesses  at  its  publication,  essential 
to  its  validity  ;(1)  yet  it  is  safer,  and  more  prudent,  and  leaves  less 
in  the  breast  of  the  ecclesiastical  judge,  if  it  be  not  only  signed  by 
the  testator,  but  also  published  in 'the  presence  of  witncsses(j). 

Butaltbough  the  testator's  seal,  and  the  attestation  to  the  will,  and, 
under  certain  circumstances,  even  his  signature,  may  be  omitted,  and 
still  it  may  operate  as  an  available  dis[3]position  of  personal  estate(A;); 
(2)  yet  if,  on  the  omission  of  either  of  those  solemnities,  a  fair  pre- 
sumption may  be  raised  of  an  abandonment  of  intention  on  the  part 
of  tlie  deceased,  or  that  his  intention  was  merely  ambulatory,  the  in- 
strument shall  have  no  effect.  Thus,  where  the  party  wrote  a  paper 
purporting  to  be  a  testamentary  disposition  of  his  property,  to  which 
a  clause  of  attestation  was  added,  but  not  filled  up,  the  court  thought 
it  reasonable,  from  the  want  of  witnesses,  to  infer  that  he  had  changed 
his  mind,  and  pronounced  for  an  intestacy.  So,  where  the  party  had 
merely  sealed  the  paper  propounded  for  a  will  without  signing  it, 
from  the  omission  of  the  signature,  the  inference  and  decision  were 
the  same.(3)  In  these  and  the  like  cases,  the  framer  of  the  instru- 
ment appears  evidently  to  have  contemplated  a  farther  solemnity,  as 
essential  to  its  perfection;  and  such  solemnity  not  having  been  super- 
added, and  the  instrument  being  left  inchoate  and  imperfect,  a  change 
of  intention  may  reasonably  be  presumed(/).  But  such  presump- 
tion may  be  repelled  by  evidence,  as  by  showing  that  the  party  was 
suddenly  arrested  by  death,  or  incapacitated  by  illness,  before  the 
instrument  could  be  conveniently  perfected (?»),  or  by  proving  his 
recognition  of  it  m  extremis^  or  by  circumstances  showing  he  in- 
tended it  to  operate  in  that  form,  for  the  presumption  from  such  an 

{])  2  Bl.  Com.  501,  502.     GodOlph.  cited  in  Mathews  v.  Warner,  and  in  ex- 

p,  1.  c.  21.  s.  2.     Vide  Limberg   v.  parte  Fearon,   5    Ves.   jun.    644.  and 

Mason,  Com.  Rep.  451.  Coles  v.  Trecothick,  9  Ves.  jun.  249. 

(A)  Read  V.  Phillips,  2  Phill.  Rep.  and  see  Walker  v.  Walker,  1  Meri.  Rep. 

122.  503. 

(/)  Mathews  v.  Warner,  4  Ves.  jun.         (??t)  Baillie  v.  Mitchell,  in  Prerog. 

180.  and  5  Ves.  jun.  23.    Griffin's  case,  Court,  1805. 


field,  3  Han-.  &  Johns.  208,  which  was  the  case  of  a  nuncupative  will.  Shaffer's  Lessee 
V.  Corbett,  3  Harr.  and  M'Hen.  513.  Iii  AlassachuseUs  an  executor,  who  is  a  mere  trus- 
tee, and  takes  no  beneficial  interest  under  the  will,  is  an  incompetent  witness  to  prove  the 
execution  of  the  will,  or  tlie  sanity  of  the  testator;  and  the  circumstance  of  his  not  being  a 
party  to  the  record,  or  not  a  subscribing;  witness  to  the  will,  makes  no  difFercnce.  Du- 
rant  v.  Starr,  11  Mass-  Rep.  527.  Sears  v.  DlUhiq-hctm,  12  Mass.  Rep.  358.  But  in 
England,  in  ejectment  against  a  devisee,  where  the  question  tui'ns  upon  tlie  sanity  of  the 
testator,  an  executor,  who  takes  a  pecuniary  interest  under  the  will,  is  a  competent  wit- 
ness to  support  it;  inasmuch  as  the  verdict  would  only  have  the  effect  of  establishing  the 
will  as  to  the  land,  and  would,  in  any  proceeding  to  establish  the  will  as  to  the  personalty, 
be  treated  as  res  inter  alios  acta.    Doe  v.  Teage,  5  Barn.  &  Cressw.  335. 

(1)  Ace.  (So.  Carolina,)  White  v.  /felines,  1  M'Cord's  Rep.  430. 

(2)  Broxvii's  Ex.  v.  Tihlen,  5  Ilarr.  and  Jolms.  371. 

(3)  Tilghmaii's  v.  Steiiart,  4  Harr.  and  Johns  156.     Case  of  A.  Stewart's  Will,  (stated) 
4  llarr.  &  Johns-  162.  •  See  lVitherspoon''s  Heirs  v.  Witherspooii's  EiX'rs:-  2M«Cord,  520. 


CHAP.  1.]  OP  WILLS  AND  CODICILS.  3 

omission  that  he  intended  doing  something  more,  is  slight,  and  may 
be  repelled  by  slight  circumstances(7i). 

By  Stat.  33  Geo.  3.  c.  28,  §  14,  and  35  Geo.  3.  c.  14,  §  16,  it  is 
enacted,  that  all  persons  possessed  of  any  share  or  interest  in  the 
funds,  or  any  estate  therein,  may  devise  the  same  by  will  in  writing, 
attested  by  two  or  more  credible  witnesses.  But  it  has  been  ad- 
judged that  although  the  same  should  not  be  so  bequeathed,  yet  it 
devolves  on  the  executor  in  trust  for  those  who  are  entitled  to  the 
personal  estate(o). 

With  regard  to  nuncupative  wills,  the  unqualified  allowance  of 
them  was  found  ]3roductive  of  the  greatest  frauds,  [4]  and  it  became 
necessary  to  subject  them  to  very  strict  regulatioiis.  Accordingly 
by  the  stat  29  Car.  2.  above-mentioned,  it  is  enacted,  that  no  such 
will  shall  be  good,(l)  where  the  estate  thereby  bequeathed  shall  ex- 

(n)  Harris  v.  Bedford,  2  Phill.  Rep.  (o)  Ripley  v.  Waterworth,  7  Ves. 

177.  jun.  452. 


(1)  The  7th  section  of  the  act  of  April  8th,  1833,  (Pamph.  Laws,  249)  "relating  to  last 
wills  and  testaments,"  provides,  tliat  "personal  estate  may  be  bequeathed  by  a  nuncupa- 
tive will  under  the  following  restrictions: 

1.  Such  will  shall,  in  all  cases,  be  made  during  the  last  sickness  of  the  testator,  and  in 
the  house  of  his  habitation  or  dwelling,  or  where  he  has  resided  for  the  space  often  days 
or  more,  next  before  the  making  of  such  will,  except  where  such  person  shall  be  sur- 
prised by  sickness,  being  from  his  own  house,  and  shall  die  before  returning  thereto. 

2.  Where  the  sum  in  value  shall  exceed  one  hundred  dollars,  it  shall  be  proved  that  the 
testator,  at  the  time  of  pronouncing  the  bequest,  did  bid  the  persons  present,  or  some  of 
them,  to  bear  witness,  that  such  was  his  will,  or  to  that  effect;  and  in  all  cases  the  fore- 
going requisites  shall  be  proved  by  two  or  more  witnesses  who  were  present  at  the  mak- 
ing of  such  will." 

By  the  luth  and  11th  sections  of  the  act  of  15th  March,  1832,  "relating  to  Registers 
and  Registers'  Courts,"  (Pamph.  Laws,  135),  it  is  provided  that, 

"No  nuncupative  will  shall  be  admitted  to  probate,  nor  shall  letters  testamentary 
thereon  be  issued  till  fourteen  days,  at  the  least,  after  the  death  of  the  testator  be  fully 
expired;  nor  shall  any  nuncupative  will  be  at  any  time  admitted  to  probate,  unless 
process  shall  have  first  issued  to  call  in  the  widow,  if  any,  and  such  of  his  relations  or 
next  of  kin  as  would  be  entitled  to  the  administration  of  his  estate  in  case  of  intestacy,  to 
contest  the  same,  if  they  please."  (Sect.  10). 

"No  testimony  shall  be  received  to  prove  any  nuncupative  will  after  six  months  elapsed 
from  the  speaking  of  the  pretended  testamentary  words,  unless  tlie  said  testimony,  or  the 
substance  thereof,  were  committed  to  writing  within  six  days  after  the  making  of  such 
will."  (Sect.  11).  It  has  been  previously  provided,  by  the  3d  and  4th  sections  of  the  act 
of  1705,  which  are  almost  transcripts  from  the  stat.  20  Car.  2.  (Purd.  Dig.  801.  1  Dall. 
Laws,  5^.  1  Sm.  Laws,  33),  that '  No  nuncupative  will  [shall]  be  good,  where  the  estate 
thereby  bequeathed  shall  exceed  the  value  of  thirty  pounds,  that  is  not  proved  by  two  or 
more  witnesses,  who  were  present  at  tlic  making  thereof,  nor  unless  it  be  proved  that  the 
testator,  at  the  time  of  pronouncing  the  same,  did  bid  the  persons  present,  or  some  of  them, 
bear  witness  that  such  was  liis  will,  or  to  that  effect;  nor  unless  sucli  nuncupative  will  be 
made  in  the  time  of  the  last  sickness  of  tlie  deceased,  and  in  the  house  of  his  or  theii- 
habitation  or  dwelling,  or  where  he  or  she  hatli  been  resident  for  the  space  often  days  oi- 
more,  next  before  the  making  of  sncli  will,  except  where  such  person  was  surprised  or 
taken  sick,  being  from  his  own  house,  and  died  before  he  returned  to  tlie  place  of  his  or 
her  dwelling." 


4  OF  WILLS  AND  CODICILS.  [bOOK  1. 

ceed  llic  value  of  tliirty  pouncls,(l)  that  is  not  proved  by  the  oaths 
of  three  witnesses  at  the  least,  who  were  present  at  the  making  thereof, 
(who,  by  Stat.  4  S,'  5  Ann.  c.  16,  must  be  such  as  are  admissible  on 
trials  at  common  law), (2)  nor  unless  it  be  proved,  that  the  testator, 
at  the  time  of  pronouncing  the  same,  did  bid  the  persons  present,  or 
some  of  them,  bear  witness  that  such  was  his  will,  or  to  that  effect;(3) 
nor,  unless  such  nuncupative  will  were  made  in  the  time  of  the  last 
sickness  of  the  deceased,  and  in  his  dwelling-house,  or  where  he  had 
been  resident  for  the  space  of  ten  days  or  more,  next  before  the 
making  of  such  will,  except  where  such  person  was  taken  sick  from 
home,  and  died  before  his  return;  nor,  after  six  months  past  after  the 
speaking  of  the  pretended  testamentary  words,  shall  any  testimony 
be  received  to  prove  any  will  nuncupative,  except  the  testimony,  or 
the  substance  thereof,  were  committed  to  writing  within  six  days 
after  the  making  of  the  said  will(/;). 

Soldiers  in  actual  military  service,  and  mariners,  or  seamen  at  sea, 
are  exempted  from  the  provisions  of  this  act.  (4)  The  former  may 
at  this  day  make  nuncupative  wills,  and  dispose  of  their  goods, 
wages,  and  other  personal  chattels,  without  those  forms  and  solemni- 
ties which  the  law  requires  in  other  cases((7). 

[5]  But,  with  respect  to  the  latter,  this  licence  no  longerexists.  The 
perpetual  impositions  practised  on  this  meritorious  and  urisuspect- 

(j9)See  Miller  V.  Miller,  3  P.  Wms.  (y)  1  Bl.  Com.  417.     Stat.  29  Car. 

356.  2.  c.  3.  s.  23.     5  W.  3.  c.  21.  s.  6. 


"After  six  months  past,  after  speaking  of  the  pretended  testamentary  words,  no  testi- 
mony shall  be  received  to  prove  any  will  nuncupative,  except  tlie  said  testimony,  or  the 
substance  thereof,  were  committed  to  writing  within  six  days  after  making  of  the  said  will." 

(1)  IVeeden  \.  JBarilett,C)  Munf.  123.  Thirty  dollars  is  the  amount  in  Virginia.  The 
amount  of  propei'ty  in  the  case  ai  Jirayfieldx.  Brayjield,  3  Harr.  Jk  Johns.  208,  where 
tlie  nuncupative  will  was  regularly  proved,  was  3236  dollars  48  cents. 

(2)  A  legatee  who  releases  his  interest  is  admissible,  though  the  release  be  not  accepted. 
Urayfield  v.  Brayjield,  3  Harr.  &c  Johns.  208.  A  free  negro  is  incompetent  in  South 
Carolina  in  any  case  where  the  rights  of  white  persons  are  concerned.  Jl'hite  v.  Helmes, 
\  M 'Cord,  430. 

(3)  Beimett  v.  Jackson,  2  Phill.  Rep.  190.  M'Gee  v.  M' Cants,  1  M'Cord,  518.  See 
JVIason  V.  Dimnian,  1  Munf.  456,  where  notes  dictated  animo  testandi  to  a  person  by  the 
decedent,  with  the  view  to  have  a  luritten  will  prepared,  were  established  (in  Virginia)  as 
a  good  mmcupative  will,  tliough  a  written  one  was  prepareil  from  them,  which  the  tes- 
tator was  unable  to  execute,  being  delirious.  The  fachim  of  a  nuncupative  will  requires 
to  be  proved  by  evidence  more  strict  anil  stringent  than  that  of  a  written  one,  in  addition 
to  all  the  several  requisites  to  its  validity,  under  the  statute  of  frauds,  being  proved,  to 
entitle  it  to  probate.  Lemann  \ .  Bonsall ,  1  Addam's  Rep.  389.  See  the  Case  oi  Pris- 
cillu  E.  YarnaWs  Will,  4  Rawle,  46. 

(4)  Provided  always,  tliat  notwitlistanding  tliis  act,  any  mariner  or  person  being  at 
sea,  or  soldier  being  in  actual  military  service,  may  dispose  of  his  moveables,  wages 
and  personal  estate,  as  he  or  they  might  have  done  before  this  act."  Act  of  1705,  sect. 
7.  Puid.  Dig.  801.  1  Dall.  Laws,  53.  I  Sm.  Laws,  33.  The  8th  sect,  of  the  act  of 
April,  lS.).i  (Panipli.  Laws,  250),  is  the  same  as  the  7lh  sect,  of  the  act  of  1705,  except 
that  the  privilege  is  to  "  any  mariners  being  at  sea,"  not  to  "  any  mariner  ov person  being 
at  sea." 


CHAP.  I.]  OF    WILLS    AND    CODICILS.  5 

ing  body  of  men  induced  the  legislature  to  adopt  a  new  policy,  and 
to  divest  them  of  a  privilege,  which,  instead  of  being  beneficial  to 
them,  was  perverted  to  purposes  the  most  injurious. 

Many  salutaiy  regulations  were  accordingly  prescribed  by  the 
statutes  26  Geo.  3.  c.  63.,  32  Geo.  3.  c.  34.,  and  49  Geo.  3.  c.  108., 
in  regard  to  the  making  and  probate  of  the  wills  of  petty  officers  and 
seamen  in  the  king's  service,  and  of  non-commissioned  officers  of 
marines,  and  marines  serving  on  board  a  ship  in  the  king's  service, 
since  however  repealed,  and  other  regulations  substituted  by  the 
statute  55  Geo.  3.  c.  60,  but  which  I  shall  defer  specifying  till  I 
treat  of  probates. 

A  codicil  is  a  supplement  to  a  will,  annexed  to  it  by  the  testator, 
and  to  be  taken  as  part  of  the  same,  either  for  the  purpose  of  ex- 
plaining, or  altering,  or  of  adding  to,  or  subtracting  from,  his  former 
dispositions(r). 

A  codicil  may  be  annexed  to  the  will,  either  actually  or  construc- 
tively. It  may  not  only  be  written  on  the  same  paper,  affixed  to,  or 
folded  up  with  the  will,  but  may  be  written  on  a  different  paper,  and 
deposited  in  a  different  place. 

A  codicil  may  be  annexed  either  to  a  devise  of  lands,  or  to  a  will 
of  personal  estate.  To  alter  the  former,  a  codicil  [6]  must  by  the 
statute  of  frauds  be  in  writing,  and  signed  by  the  devisor,  or  some 
other  person  in  his  presence,  and  by  his  express  directions,  and  be 
subscribed  in  his  presence  by  three  or  iox^r  credible  witnesses(*). 
To  a  will  of  personal  estate  it  may  be  either  written  or  nuncupative, 
provided  in  case  of  its  being  the  latter,  it  merely  supply  an  omission 
in  the  instrument.  Therefore  A.,  having  disposed  of  part  of  his  ef- 
fects by  his  will  in  writing,  may  dispose  of  the  residue  by  a  nuncu- 
pative codicil(/).  But  by  the  same  statute,  as  we  shall  presently  see, 
such  codicil  shall  not  operate  to  repeal  or  alter  a  will.  A  written 
codicil  respecting  personal  estate  is  authenticated  in  the  same  man- 
ner as  a  will  of  such  property. 

In  respect  to  copyholds,  they  are  not  within  the  statute  of  frauds. 
A  devise  of  them  operates  only  as  a  declaration  of  uses  on  the  sur- 
render to  the  use  of  the  will :  if,  therefore,  the  form  required  by 
the  surrender,  which  is  usually  nothing  more  than  a  testamentary 
declaration  in  writing,  be  observed,  it  is  sufficient  without  any  wit- 
ness; and  till  that  statute  required  all  declarations  of  trusts  to  be 
in  writing,  even  a  nuncupative  will  of  copyholds  was  an  effectual 
declaration  of  the  uses,  where  the  surrender  was  silent  as  to  the 
form(?^). 

(r)  2  Bl.  Com.  500.     Swinb.  Part  («)  Harg.  Co.  Litt.  114  b.  note  3. 

1.  s.  5.  TulTiiell  V.  Page,  2  Atk.  37.     S.  C.  2 

(s)  Onions  v.  Tyrer,  1  P.  Wms.  311.  Barnard,  Ch.  Kep.  9.  Attorney-General 

&  note  1.  ibid.  vid.Dougl.  241.  note  2.  v.   Barnes,  2   Veni.  5!)H.     Dormer  v. 

Ellis  V.  Smith,  1  Ves.  jim.  11,  and  infr.  Thnrland,  2  P.  Wms.  510.     Harris  v. 

15.  Ingledrew,  3  P.  Wms.  90.     Carey  v. 

(0    Com.  Dig.  Devise  (C.)  Raym.  As^<ew,  2  Bro.  Ch.  Rep.  58.     Church 

334.  V.  Mundy,  12  Ves.  jun.  429. 


7  OF    WILLS    AND    CODICILS.  [p.OOK  I. 

[7]  But  a  (leyisc  of  customary  iVecholcls,  where  there  is  no  cus- 
tom to  surrender  to  tlic  use  of  tlic  will,  must  be  pursuant  to  tlic 
statute(/'). 

An  estate  pur  auter  vie,  being  freehold,  will  pass  by  such  a  will 
only  as  is  so  executed(i^). 

In  regard  to  terms  for  years,  as  they  fall  within  the  description  of 
personal  cstate,(l)  they  may  be  disposed  oft'  by  will  accordingly, 
with  this  disUnction:  If  they  arc  terms  not  in  gross,  but  vested  in 
trustees  to  attend  the  inheritance,  they  so  partake  of  its  nature,  that 
if  the  owner  devise  the  land  generally,  the  trust  of  the  term  will  not 
pass,  unless  the  will  be  so  attested  as  to  pass  the  inheritance(.T).  If 
they  are  terms  in  gross  of  which  the  testator  is  possessed,  he  may 
transmit  them  by  the  same  kind  of  will  as  any  other  personalty;  yet 
he  cannot  create  them  by  will  without  observing  all  the  forms  essen- 
tial to  a  devise  of  real  estate;  because  the  interest,  in  right  of  which 
the  testator  creates  the  term,  is  real  property,  and  the  creation  of  the 
term  is  a  partial  devise  of  it(y). 

If  a  will  give  a  sum  of  money  originally,  and  primarily  out  of  land, 
the  instrument  is  considered  as  a  devise  of  real  estate,  and  must  be 
executed  with  the  same  solemnities,  because  the  charge  is  regarded 
in  equity  as  part  of  the  land,  since  it  can  be  raised  only  by  sale,  or 
disposition  of  part  of  it(z). 

[8]  Although  money  covenanted  to  be  laid  out  in  land  shall  de- 
scend as  a  real  estate,  ai^l  may  be  devised  accordingly,  yet  he,  who 
is  entitled  to  the  fee  of  the  land  when  purchased,  may  dispose 
of  it  as  personal  property,  under  the  description  of  so  much  money 
to  be  laid  out  in  land,  by  a  will  which  is  not  attested  by  three  wit- 
nesses(«). 

The  statute  of  frauds  has  been  held  not  to  be  applicable  to  the 
case  of  a  devise  of  land  in  Barbadoes(6),  because  acts  of  parliament 
passed  in  England  without  naming  the  foreign  plantations  will  not 
bind  them. 

A  will  may  be  void  from  the  incapacity  of  the  party  making  it; 
and  secondly,  it  may  be  annulled  by  cancelling,  or  revoking  it(c). 

There  are  three  grounds  of  incapacity;  the  want  of  sufficient  legal 

(v)  Wardev.  Warde,  Amb,  299.  '  (y)  Ilarg.  Co.  Lit,  114  b.  note  3. 

(w)  See  Watk.  Princ.  Convey.  22.  (z)  Brudenell  v.  Boughton,  2  Atk. 

and  Stat.  29  Car.  2.  c.  3.  s.  12.  and  14  272. 

Geo.  2.  c.  20.  (a)  Lingen  v.  Sowray,  1  P.  Wnis. 

{x)  Haro-.  Co.  Litt.  Ill  b.  note  3.  172.   291.     Edwards   v.    Countess  of 

Whitchurch  v.  Whitchurch,  Gilb.  Cn.  Warwick,  2  P.  Wms.  171 .     S.  C.  3  P. 

in  Eq.  108.     S.  C.  2  P.   Wms.  23G.  Wms.  221.  note.    S.  C.2  Eq.  Ca.  Abr. 

S.  C.  9  Mod.  127.     Villiers  v.  Villiers,  298. 

2  Atk.  72.    Goodright  v.  Sales,  2  Wils.  (/;)  Anon.  2  P.  Wms.  75. 

329.  Vid.  infr.  (c)  2  Bl.  Com.  502. 


(I)  Ex-parte  Gat/,  5  Mass.  llcp.  419.    Mrmla^iie  v.  Smith,  13  Mass.  Rep  mC.     C/ui/i- 
man  v.  Grmi,  15  Mass.  Rep.  4.39.     Breivster  v.  JHU,  1   New  llamp.  Rep.  .S.'iO. 


CHAP.  I.]  OF    WILLS    AND    CODICILS.  8 

discretion;  the  want  of  liberty  or  free  will;  and  the  criminal  con- 
duct of  the  party(^/).(l) 

To  the  first  are  subject,  by  the  express  provision  of  the  stat,  34  & 
35  Hen.  8.  c.  5.,  all  infants  under  the  age  of  twenty-one  years  in  re- 
gard to  lands(el.(2)  In  respect  to  personal  estate,  infants  under 
the  age  of  fourteen  years,  if  males,(3)  and  of  twelve  years,  if  females, 
are  incompetent  to  bequeath  the  same(/):  After  that  period  their 
incapacity  ceases:  although,  on  the  one  hand,  it  has  been  strangely 
asserted,  that  an  infant  of  any  age,  even  of  four  years  old,  may  make 
a  testament  of  per[9]sonal  property (^);  and  on  the  other,  he  has 
been  denied  before  eighteen  to  be  competent(A);  yet  this,  as  a  mat- 
ter of  ecclesiastical  cognizance,  must  be  determined  by  the  ecclesias- 
tical law,  which  has  prescribed  the  rule  as  above  stated(z). 

But,  if  the  testator,  of  whatever  age,  were  not  of  sufficient  capaci- 
ty, that  will  invalidate  his  testament.  B^y  the  above-mentioned 
statute  of  the  34th  and  35th  He7i.  8.  a  will  of  lands  made  by  an  idiot, 
or  by  any  person  of  nonsane  memory,  is  declared  void.  Persons  af- 
flicted with  madness,  or   any  other  mental  disability,  idiots,(4)    or 

{d)  2  Bl.  Com.  496,  497.  an   error   of  the   press   for  14.     Vide 

(e)  Herbert  v.  Torball,  1  Sid.  162.  Harg.  Co.  Litt.  89  b.  note  6. 
Stat.  34  &  35  H.  8.  c.  5.  s.  14.  {h)  Harg.  Co.  Litt.  89  b. 

(/)  Off.  Ex.  213,  214.     Harg.  Co.         (t)  2Bl.Com.497.   Harg.  Co.  Litt. 

Litt.  89  b.  note  6.  89  b.  note  6. 

(g)  Perkins,  s.  503 ;  but  that  seems 


(1)  4  Greenl.  Rep.  223.  Dietrick  v.  Bietrick,  5  Serg.  &  Rawie,  207.  Missear  v.  Ar- 
nold, 13  Serg.  &  Rawle,  323.  But  any  one  has  a  right  by  fair  arg-ument  and  persuasion, 
or  by  virtuous  influence,  to  induce  another  to  make  a  will  in  his  favour.  Miller  v.  Mil- 
lei',  3  Serg.  &  Rawle,  2G7.     Small  v.  Small,  4  Greenl.  Rep.  220. 

(2)  Although  the  Act  of  Assembly  (of  1705)  does  not  mention  the  common  law  disabil- 
ities, of  coverture,  infancy,  idiocy,  &,c.,  yet  these  disqualifications  exist  in  Pennsylvania 
as  well  as  in  England.      TVest  v.  West,  10  Serg.  h  Rawle,  446. 

The  Act  of  April  8th,  1833,  "relating  to  last  wills  and  testaments"  (Pamph.Laws,  249.) 
provides,  (sect.  1.)  "  that  every  person  of  sound  mind,  married  women  excepted,  may 
dispose  by  will  of  his  or  her  real  estsite,  whether  such  estate  be  held  in  fee  simple,  or  for 
the  life  or  lives  of  any  other  person  or  persons,  and  whether  in  severalty,  joint  tcnantcy, 
or  common,  and  also  of  his  or  her  personal  estate."  And  also  (sect.  2.)  "  that  a  married 
woman  may,  under  a  power  legally  created  for  the  purpose,  dispose  of  her  real  or  per- 
sonal estate  by  will,  or  appointment  in  the  nature  of  a  will,  and  that  any  married  woman 
may,  with  the  assent  or  license  of  her  husband,  dispose- of  her  personal  estate  by  will." 
And  also  (sect.  3.)  "  that  no  will  shall  be  effectual  unless  the  testator  were,  at  the  time  of 
making  tlie  same,  of  the  age  of  twenty-one  years,  or  upwards,  at  which  age  the  testator 
may  dispose  of  real  as  well  as  personal  or  mixed  projjcrty,  if  inoUier  respects  competent  to 
make  a  will. "    It  would  he  difficult  to  say  what  the  legislature  mean  by  "  mixed  property." 

(3)  JJ('a7i,  Ex.  v.  Liltlefield,  1  Pick.  Rep.  239.  In  Nortli  Carolina,  an  infant  under  the 
age  oi  eighteen  years  cannot  dispose  of  liis  personal  estate  by  will.  WilUavis  v.  Baker, 
2  Car.  Law.  Rep.  599. 

(4)  See  Rambler  v.  Tnjnn,  7  Serg.  k  Rawle,  90.  Merc  feebleness  of  intellect,  short  of 
what  might  by  many  be  supposed  to  amount  (o  idiocy,  is  insufficient  to  render  a  will 
void.     Dornick  v.  liddmiback,  10  Serg.  fc<  Rawle,  84.     Heister  v.  Ltjnch,  1  Veates,  108. 


9  OF    WILLS    AND    CODICILS.  [bOOK  1. 

natural  fools,  or  those  whose  intellects  arc  destroyed  by  age,(l)  dis- 
temper, or  (h'uivkcnness,(2)  are  all  incapable  of  making  a  will  of 
personal  estate,  during  the  existence  of  such  disability.  In  this 
class  also  may  be  ranked  those  persons  who,  having  been  born  deaf 
and  blind,  have  ever  wanted  the  common  sources  of  understanding 
(_/).  But  a  will  is  not  effected  by  the  subsequent  insanity  of  the  tes- 
tator(A-).(3)  And  if  a  testator  be  subject  to  insanity,  a  will  made 
during  a  clear  lucid  interval  will  be  established(/).(4) 

In  respect  to  the  incapacity  arising  from  the  want  of  liberty,  or 
freedom  of  will,  prisoners,  captives,  and  the  like,  are  not  by  the  law 
of  England  absolutely  disabled  to  maJie  a  testament;  but  the  court 
has  a  discretion  of  judging  whether,  from  the  special  circumstances 
of  duress,  such  act  .shall  be  construed  involuntary. 

A  married  woman  is  also  precluded,  by  the  aforesaid  stat.  34  and 
35  Hen.  8.,  from  devising  lands.(5)  Nor  has  she  the  [10]  power  of 
hequeathing  personal  estate.  Her  personal  chattels  belong  absolutely 
to  the  husband.  He  may  also  dispose  of  her  chattels  real,  and  he 
shall  have  them  to  himself  in  case  he  survive;  an  interest  which 
necessarily  precludes  her  from  such  an  alienation(/;i):  yet  by  the 
licence  of  the  husband,(6)  she  may  make  a  testament,  and,  on  mar- 

(j)  2  Bl.  Com.  497.  Dow's  Rep.  178. 

(A-)  4  Co.  60.  (m)  2  Bl.  Com.  497,  498.     4  Co.  51. 

(/)  Clerke  v.  Cartwright,  1  Phill.  34  &  35  Hen.  8.  c.  5.  s.  14. 
Rep.  90.     White  v.  Driver,  ib.  84.     1 


(1)  But  extreme  old  age  does  not  of  itself  disqualify  a  person  from  making  a  will.  Van 
Alst  V.  Hunter,  5  Johns.  Clia.  Rep.  158,  in  which  case  the  testator  was  between  ninety  and 
one  hundred  years  old. 

(2)  But  drunkenness  merely  of  itself  is  no  legal  exception  to  tlie  validity  of  a  will;  but 
where  a  man's  senses  are  besotted  by  habitual  intoxication,  and  his  understanding  gone, 
he  can  make  no  will.  Stanet  v.  Douglas,  2  Yeates,  48.  Might  v.  Wilson,  I  Dall.  94 — the 
facts  of  the  case.  Temple  v.  Temple,  1  Hen.  &  Munf.  476.  In  Pennsylvania,  the  Act  of 
25th  Feb.  1819,  relative  to  habitual  drunkards,  provides,  that  like  proceedings  shall  be 
had  to  determine  whether  a  person  be  an  habitual  drunkard,  as  in  the  cases  of  persons  7io?« 
compotes  me/itis,  and  upon  the  return  of  an  inquisition  finding  that  a  person  by  reason  of 
habitual  drunkenness  has  become  incapable  of  managing  his  estate,  the  Court  of  Common 
Pleas  shall  appoint  two  guardians  or  trustees,  who  shall  have  the  care  and  management  of 
his  estate,  and  apply  so  much  of  the  same  as  shall  be  necessary  to  his  maintenance  and 
that  of  his  family.  (Purd.  Dig.  190.)  No  case,  it  is  believed,  has  occm-red,  in  which  the 
effect  of  such  an  inquisition,  upon  tlie  right  of  the  habitual  drunkard  to  make  a  will,  has 
been  determined. 

(3)  Hughes  V.  Hughes's  Ex.  2  Munf  209- 

(4)  And  if  a  person  who  has  been  placed  under  guardianship  as  non  compos  mentis,  be 
restored  to  his  reason,  he  is  capable  of  making  a  will,  although  the  letters  of  guardianship 
remain  unrevoked.     Stone  v-  Damon,  12  Mass.  Rep.  488. 

(5)  ^ecante,  p.  8,  note  (2).     Cooper's  Justinian,  494. 

(fj)  Osgood  v.  Breed,  12  Mass.  Rep.  532.  The  testament  being  in  the  husband's 
handwriting  is  evidence  of  his  assent.  Grimkev.  Grimke,  1  Desaus.  Rep.  366.  But  in 
the  absence  of  any  stipulation  or  agreement,  made  between  them,  that  her  personal  pro- 
perty shall  be  held  or  enjoyed  by  the  wife  to  her  separate  use, a  testamentary  disposition 


CHAP.  I.]  OF    WILLS    AND    CODICILS.  10 

riage,  he  frequently  covenants  with  her  friends  to  allow  her  that  pri- 
vilege(n).  So,  where  he  stipulates  that  personal  property  shall  be 
enjoyed  by  the  wife  separately,  it  must  be  so  enjoyed  with  all  its  in- 
cidents, one  of  which  is  the  power  of  disposition  by  a  testamentary 
instrument(o).(l)  And  where  she  has  such  power  over  the  princi- 
pal, it  extends  also  to  its  produce  and  accretions(/>).(2) 

But  where  a  feme  convert,  in  consequence  of  such  a  contract  on  the 
part  of  the  husband,  makes  a  writing  in  the  nature  of  a  will,  it  seems 
not  in  a  strict  legal  sense  to  operate  as  a  will,  but  as  an  appointment; 
yet  it  is  so  far  testamentary,  that  it  must  be  proved  in  the  spiritual 
court,  before  her  legatee  shall  be  entitled(5'.)(3) 

If  the  husband  be  banished  for  life  by  act  of  parliament,  the  wife 
is  entitled  to  make  a  will(r).(4)  So  where  personal  [11]  property  is 
given  in  trust  for  the  sole  and  separate  use  of  a  married  woman,  she 
may  dispose  of  it  by  will,  without  her  husband's  assent(*). 

A  feme  covert  may  also  make  a  will  of  effects,  of  which  she  is  in 
possession  in  aut7'e  droit,  in  a  representative  capacity;  for  they 
never  can  be  the  property  of  the  husband(/.) 

The  queen  consort  has  a  general  right  to  dispose  of  her  personal 
estate  by  will,  without  the  consent  of  her  lord(?<). 

Persons  incompetent  by  their  crimes  are  all  traitors,  and  felons, 
without  benefit  of  clergy,  from  the  time  of  their  conviction  and  at- 
tainder, or  outlawry,  which  amounts  to  the  same;  for  then  their 
property  is  no  longer  at  their  own  disposal,  but  is  altogether  for- 
feited(i>). 

In  case  a  traitor,  or  felon  without  benefit  of  clergy,  shall  die  after 
conviction,  and  before  attainder,  his  lands  shall  pass  by  his  will,  but 

(«)  Dr.  &  Stud.  D.  1.  c.  7.     4  Bac.  Stonehouse,  ib.  612.     2  Bl.  Com.  498. 

Abr.  244.     Vide  Rex  v.  Bettesworth,  Rex  v.  BeUesworth,  Stra.  891. 
Stra.  891.  (?•)  4  Bac.  Abr.  244.     Countess  of 

(o)  4  Bac.  Abr.  244.  in  note.     Fet-  Portland  v.  Progers,  2  Vern.  104. 
tiplace  V.  Gorges,  3  Bro.  Ch.  Rep.  8.         (s)  Fettiplace  v.  Gorges,  3  Bro.  Ch. 

S.  C.  1  Ves.  jun.  46.  Rep.  8.    S.  C.  1  Ves.jun.  46.    Tappen- 

(n)  Gore  v.  Knight,  2  Vern.  535.  den  v.  Walsh,  1  Phill.  Rep.  352. 
Herbert  v.  Herbert,  Prec.  Ch.  44.  355.         {t)  Off.  Ex.  87.     Godolph.  1.  10, 11. 

{q)  Ross  V.  Ewer,  3  Atk.  156.    Jen-  Vin  Abr.  141. 
kin  V.  Whitehouse,  1  Burr.  431.     Co-         (u)  Harg.  Co.  Litt.  133. 
thay  V.    Sydenham,  2  Bro.   Ch.  Rep.         {v)  2  Bl.  Com.  499.  4  Bl.  Com.  380, 

392.   Stone   v.    Forsyth,    Dougl.   707.  381.387.     Bac.  Abr.  tit.  Outlawry.     2 

Vide  also  Cotter  v.  Layer,  2  P.  Wms.  Hale,  P.  C.  205.     Godolph.  p.  1.  c.  12. 

624.     Duke  of  Marlborough  v.   Lord  s.  8. 
Godolphin,  2  Ves.    75.      Southby   v. 


by  a  feme  covert  of  her  personal  property  or  cHoses  in  act/or.  in  favnni-  of  her  husband  is 
void,  thoijgh  made  with  his  consent.  Hood  v.  Archer,  1  M'Cord's  llep.  2'i5.  477.  Case 
of  Sarah  A.  JVewelt,  2  M'Cord's  Rep.  433. 

(1)  1  M'Cord's  Rep.  2'2G.     1  Yeates,  225. 

(2)  1  M'Cord's  Rep.  226. 

(3)  4  Mason's  Rep.  461,  462. 

(4)  If'riifht  V.  fVright's  Ex.,  2  Desaus-  Rep. 


11  OF    WILLS    AND    CODICILS.  [bOOK  I. 

not  his  goods  and  chattels  ;  for  the  former  are  forfeited  only  on  at- 
tainder, llic  latter  on  conviction(«').(l) 

Nor  shall  the  will  of  a  felo  dc  se,  so  far  as  it  respects  goods  and 
chattels,  have  any  operation  ;  for  they  are  forfeited  by  [12]  the  act 
and  manner  of  his  death  ;  but  a  devise  of  his  lands  shall  be  effectual, 
for  of  them  no  forfeiture  is  incurred(.'r).  A^  is  also  that  of  a  party 
guilty  of  felony,  not  punishal)le  with  death,  for  he  forfeits  only  his 
goods  and  chattels(?y).  And  a  felon  of  every  description  may  de- 
vise lands  held  in  gavelkind  ;  for  lands  of  this  tenure  are  not  for- 
feited by  felony(r). 

Outlaws  also,  though  merely  in  civil  cases,  arc  intestable,  in  res- 
pect to  their  personal  property,  while  their  outlawry  subsists  ;  for 
their  goods  and  chattels  are  forfeited  during  that  time(«). 

As  for  persons  guilty  of  other  crimes  inferior  to  felony,  as  usu- 
rers, and  libellers,  they  are  not  precluded  from  making  testa- 
ments(6)  ;  nor,  as  it  seems,  is  a  party  excommunicatcd(c). 

An  alien,  with  whose  country  we  are  at  war,  if  he  have  not  the 
king's  licence  to  reside  here,  express,  or  implied,  is,  by  our  law,  in- 
capable of  making  a  will  ;  but  if  he  have  such  licence,  he,  as  well  as 
an  alien  friend,  may  bequeath  his  personal  estate(^).(2)  They  can 
neither  of  them  acquire  any  permanent  property  in  land.     They 

(iv)  4  Bl.  Com.  387.  (a)  Fitzh.    Abr.   tit.   Descent,    16. 

(a-)  Plowd.  261.     Swimb.  106.     4  Paine  v.  Teap,  1  Salk.  109.     Sod  vid. 

J3ac.  Abr.  247.  4B1.  Com.  386.  3  Inst.  Shaw  v.  Cuttcris,  Cro.  Eliz.  851. 

55.  (i)  Godolph,  p.  I.e.  12. 

(y)  4  Bl.  Com.  97.    Co.  Litt.  391.  (c)  Off.  Ex.  17. 

(z)  2  Bl.  Com.  84.     4  Bl.    Com.  (rf)  1  Bl.  Com.  372.    Wells  v.  Wil- 

386.    Lamb.  Peramb.  634.  Hams,  I  Lutw.  34.     1  Wooddes.  374. 


(1)  By  the  19th  section  of  the  19tli  Article  of  the  Constitution  of  the  State  of  Pennsylva- 
nia, it  is  provided,  "tliat  no  attainder  shall  work  corruption  of  blood,  nor,  except  during 
the  life  of  the  offender,  forfeiture  of  estate  to  the  Commonwealth  ;  the  estates  of  such  per- 
sons as  shall  destroy  their  own  lives  shall  descend  or  vest  as  in  case  of  natural  death,  kc. " 

(2)  By  the  3d  section  of  the  Act  of  23d  Feb.  1791,  entitled  "A  supplement  to  tlie  Act 
entitled  '  An  act  to  declare  and  regulate  escheats,'  "it  is  provided  that  "  all  such  persons 
[citizens  or  subjects  of  foreign  states]  shall  be  able  and  capable  in  law  to  dispose  of  any 
goods  and  effects  to  which  they  may  be  entitled  witliin  this  state,  either  by  testament, 
donation  or  otherwise,"  kc.  (Purd.  Dig.  8.  3  Dall.  Laws,  8.  3  Sra.  Laws,  4.)  Acts  of 
Assembly  have  been  passed  at  different  periods  giving  to  aliens  in  Pennsylvania  a  more 
or  less  restricted  right  to  acquire  land,  and  to  dispose  of  it  by  deed  or  will,  (Act  of  31 
^u'ff.  UTS,  Purd.  Dig.  7.  1  Dall.  Laws,  774.  1  Sm.  Laws,  4G1;  Act  of  23d  Feb.  1791; 
lOlh  Feb.  1807,  Purd.  Dig.  8.  4  Sm.  Laws.  3C2 ;  Act  of  20th  March  1811,  Purd.  Dig.  9. 
5  Sm.  Laws,  211  ;  Act  of  22d  March  1814,  Purd.  Dig.  9.  1  Reed's  Laws,  178  ;)  and  by 
the  Act  of  the  24th  March  18iS(Purd.  Dig.  9.  2  Reed's  Laws,  133,)  sect.  1.  it  is  provi- 
ded tliat  "from  and  after  the  passing  of  this  act,  it  shall  and  may  be  lawful  for  all  and 
every  foreigner  and  foreigners,  alien  or  aliens,  not  being  the  sulyect  or  subjects  of  some 
foreign  state  or  power,  which  is  or  sliall  be  at  the  time  or  times  of  such  purchase  or  pur- 
chases, at  war  with  the  United  States  of  America,  to  purchase  lands,  tenements,  and  here- 
diUiments,  within  this  Commonwealth,  not  exceeding  five  thousand  acres,  and  to  have  and 
to  hold  the  siimc  to  them,  their  heirs  and  assigns,  forever,  as  fully  to  all  intents  and  pur- 
poses as  any  natural  born  citizen  or  citizens  may  or  can  do." 


CHAP.  I.]  OF    WILLS    AND    CODICILS.  12 

may,  indeed,  hire,  or  take  leases  for  years  of  houses  for  habitation{e), 
which  chattel  [13]  interests,  it  seems,  they  may  dispose  of  by  will 
(/)  :  But  the  stat.  33  Hen.  3.  c.  6.  s.  13.  makes  void  all  leases  of 
houses  or  shops  to  an  alien,  artificer,  or  handicraftsman.  And  this 
law,  however  contrary  it  may  appear  to  sound  policy,  and  the  spirit 
of  commerce,  is  still  in  force  ;  but  in  favour  of  aliens  it  has  been 
construed  very  strictly(^). 

By  Stat.  5  Geo.  I.  c.  27.,  British  artificers  going  out  of  the  realm 
to  exercise  or  teach  their  trades  abroad,  or  exercising  their  trades  in 
foreign  parts,  who  shall  not  return  within  six  months,  after  due  warn- 
ing given  them,  shall  be  deemed  aliens,  and  incapable  of  taking  any 
lands,  and  shall  forfeit  all  their  real  and  personal  estates;  consequent- 
ly, their  wills  can  have  no  operation  here. 

Secondly,  a  will  of  personal  estate,  and  by  the  statute  of  frauds,  a 
will  of  lands,  may  be  annulled  by  burning,  cancelling,  tearing,  or 
obliterating  the  same,  by  the  testator,(l)  or  in  his  presence,  and  by 
his  direction  and  consent(A).  And  a  will  of  either  species  may  be 
annulled  by  an  express  or  implied  revocation  of  it. 

Although  a  testator  has  made  a  will  irrevocable  in  the  strongest 
terms,  yet  he  is  at  liberty  to  revoke  it  ;  for  he  shall  [14]  not,  by  his 
own  act  or  expressions,  alter  the  disposition  of  law  so  as  to  make 
that  irrevocable  which  is  of  an  opposite  nature(^).(2) 

(e)  IBI.  Com.  371,  372.   TCo.Rep.  Jevons  v.  Harridge,  1  Sid.  309.  Jevons 

17.     Harg.  Co.  Litt.  2  b.  v.  Livemere,  1  Saund.  7.     Pilkington 

(/)  Harg.  Co.  Litt.  2  b.  note  8.  v.  Peach,  2  Show.  135.    Bridgham  v. 

Harg.  Co.  Litt.  1  Anders.  25.  Frontee,  3  Mod.  94.     Wells  v.  Wil- 


N.  Bendl.  36.  vid.     liams,.  1  Salk.  46. 


also,  Caroon's  case,  Cro.  Car.  8.    Sed         {h)  Stat.  29  Car.  2.  c.  3.  s.  6. 
vid.  Co.  Litt.  2  b.  (/)  8  Co.  82. 

{g)  Harg.  Co.  Litt.  2  b.  note  7.  vid. 

(1)  'Johnson  v  Braikford,  2  Nott  Sc  M'Cord,  272.  Tlie  word  "  destroying"  is  used  in 
the  Act  of  Assembij'  (of  South  Carolina)  instead  of  the  words  "burning,  cancelling,  and 
tearing"  in  the  statute  of  frauds  ;  but  the  construction  is  the  same.  In  Pennsylvania,  im- 
plied, constructive,  or  legal  revocations,  among  which  were  cancelling,  obliterating,  or 
destroying  the  will,  subsisted  as  before  the  Act  of  Assembly  (of  17G5)  or  the  statute  of 
frauds,  Laivson  v.  Morrison,  2  Ball.  Rep.  289.  ;  and  the  Act  of  Assembly  being  silent  as 
to  such  revocations  in  law,  they  were  proved  as  other  matters  of  fact,  witliout  regard  to 
the  form  prescribed  by  the  act  for  the  probate  of  a  will.  Bums  v.  Biams,  4  Serg.  & 
Rawle,  297.  But  by  the  13th  and  I4th  sect,  of  the  Act  of  8lh  April  1 SS.?,  (Pamjih.  Laws, 
250,)  it  is  provided,  "  that  no  will  in  writing  concerning  any  real  estate  shall  be  repealed, 
nor  shall  any  devise  or  direction  therein  be  altered,  otherwise  than  by  some  other  will  or 
codicil  in  writing,  or  other  writing  declaring  the  same  executed  and  proved  in  the  same 
manner  as  is  hereinbefore  provided  [sect.  6],  or  by  burning,  cancelling,  or  obliterat- 
ing or  destroying  the  same  by  the  testator  himself,  or  by  some  one  in  his  presence,  and 
by  his  express  direction,"  and  "that  no  will  in  writing  concerning  any  personal  estate 
shall  be  repealed,  nor  shall  any  bequest  or  direction  therein  be  altered,  oUierwise  than  as 
hereinbefore  provided  in  the  case  of  real  estate,  except  by  a  nuncupative  will,  made  under 
the  circumstances  aforesaid,  and  also  committed  to  writing  in  the  lifetime  of  the  testator, 
and  after  the  writing  thereof  read  to  him,  and  allowed  by  him,  and  proved  to  be  so  done 
by  two  or  more  witnesses." 

(2)  See  Jfatlei'  of  J\^an  jWckle,  14  Johns.  Rep.  324.    The  case  of  an  implied  revocation. 


14  OF    WILLS    AND    CODICILS.  [bOOK  I. 

With  respect  to  tlic  revocation  of  a  will  by  the  act  of  cancelling, 
it  is  in  itself  an  equivocal  act ;  and  in  order  to  make  it  a  revocation, 
it  must  be  shown  quo  aniino  it  was  cancelled  ;  for,  unless  that  ap- 
pear, it  will  be  no  revocation.(l)  As,  if  A.  were  to  throw  the  ink 
upon  his  will  instead  of  the  sand,  although  it  might  be  a  complete 
delacing  of  the  instrument,  it  would  be  no  cancellation  :  or,  suppose 
A.,  having  two  wills  of  different  dates  in  his  possession,  should  direct 
B.  to  cancel  the  former,  and  through  mistake  he  should  cancel  the 
latter;  such  an  act  would  be  no  revocation  of  the  last  will:  or,  sup- 
pose A.  having  a  will  consisting  of  two  parts,  throws  one  uninten- 
tionally into  the  fire,  where  it  is  burnt,  it  would  be  no  revocation  of 
the  devises  contained  in  such  part(A'):(2)  or  if  A.,  upon  a  supposi- 
tion that  he  had  executed  a  second  will,  according  to  the  statute  of 
frauds,  containing  devises  of  the  real  estate  precisely  the  same  as 
those  in  the  first,  and  to  the  same  person,  cancel  such  former  will, 
the  devises  shall  not  be  revoked,  since  the  cancelling  was  upon  an 
evident  mistake(/).(3)  And  where  a  testator  being  angry  with  one 
of  the  devises  in  his  will,  begaii  to  tear  it  with  the  intention  of  de- 
stroying it;  and  having  torn  it  into  four  pieces  was  prevented  from 
proceeding  further,  partly  by  the  efforts  of  a  by-stander,  who  seized 
his  arms,  and  partly  by  the  entreaties  of  the  devisee,  and  upon  that 
•became  calm;  and  having  put  by  the  several  pieces,  he  expressed  his 
satisfaction  that  no  material  part  of  the  writing  had  been  injured,  and 
that  it  is  no  worse;  upon  the  facts,  the  verdict  of  a  jury  in  favour  of 
the  will  was  supported(7?i).(4)  It  is  the  intention,  therefore,  that 
must  govern  in  such  cases,  and  parol  evidence  is  admissible  to  ex- 
plain it(7i).(5) 

If  a  will  be  destroyed  during  the  lifetime  of  the  testator,  but  with- 
out his  knowledge,  it  will  be  sul)stantiated  upon  satisfactory  proof 
thereof,  and  of  its  contents  (o).(5) 

(k)  Hyde  v.  Hyde,  1  Eq.  Ca.  Abr.  (m)    Perkes  v.  Perkes,  3   Barn.  & 

401>.    3  Cha.  Rep.  155.  S.  C.    Burten-  Aid.  489. 

shaw  V.  Gilbert,  Cowp.  49.  8  Vin.  Abr.  {ri)  Burtenshaw  v.  Gilbert,  Cowp. 

146.  pi.  17.  53. 

(0  Onions  v.  Tyrer,  1  P.  Wms.  343.  (o)  Trevelyan  v.  Trevelyan,  1  Phill. 

345.     Burtenshaw  v.  Gilbert,  Cowp.  Rep.  149. 
52. 


(1)  2  Yeates,  171.    7  Johns.  Rep.  399.     Semmes  v.  Seinmes,  7  Harr.  &  Johns.  388. 

(2)  Burns  v.  Bums,  4  Serg.  &  Rawle,  295. 

(3)  Se/nmes  v.  Semmes,  7  Harr.  &  Johns.  388. 

(4)  See  Gileses  Heirs  v.  Giles''s  Ex.,  Cam.  &  Norw.  Rep.  174. 

(5)  Burns  V.  Burns,  \  Serg.  &  Rawle,  295.  Havard  v.  Davis,  2  Binn.  406.  Gileses 
Heirs  V.  Gileses  Ex.  Boudinot  v.  Bradford,  2  Yeates,  1 70.  Bates  v.  Holman,  3  Hen.  & 
Munf.  502. 

(6)2  Yeates,  171.  Wilmot's  Lessee  v. Talbot,3ll:irr.  kM'Hen.2.  Or  lost,  Ze^-are  v.  .Ash, 
1  Bay,  464.:  and  an  issue  will  be  directed,  on  satisfactory  proof  adduced,  to  try  whether 
a  will  said  to  be  lost,  was  ever  in  fact  executed,  and  what  were  its  provisions.  Brent  v. 
Dodd,  (iWm.  Rep.  211. 


GHAP.  I.]  OF  WILLS  AND  GODICILS.  15 

[15]  In  case  there  be  duplicates  of  a  will,  one  in  the  custody  of 
the  testator,  the  other  not;  and  the  testator,  with  an  intention  to  re- 
voke his  will,  cancels  that  which  is  in  his  custody,  it  is  an  effectual 
cancellation  of  both(o). 

So  a  will  may  be  only  partially  cancelled:  therefore,  if  A.  devise 
two  estates.  Black  Acre  to  B.  and  White  Acre  to  C,  and,  after  the 
execution  of  such  will,  expunges  that  part  which  relates  to  the  dispo- 
sition of  White  Acre,  the  devise  of  Black  Acre  shall  not  be  revoked 
by  such  obliteration(7;).(l) 

A  residuary  bequest  was  held  to  be  cancelled  by  striking  through 
with  a  pencil  all  the  disposing  part,  leaving  only  the  general  descrip- 
tion, with  notes  in  pencil  in  the  margin,  indicating  alteration  and  a 
different  disposition  of  certain  articles(5').(2) 

Alterations. in  pencil  of  a  will,  are  not  therefore  to  be  taken  as 
merely  deliberative,  but  are  to  be  considered  as  equally  valid  r.s  if 
made  in  ink,  provided  it  appear  that  the  deceased  intended  them  to 
take  efrect(r).(3) 

A  will  may  be  expressly  revoked  by  another  will,  or  by  a  codicil 
in  writing;  either  of  which,  in  case  it  relate  to  land,  must  be  exe- 
cuted pursuant  to  the  statute  of  frauds  as  above  stated.  Such  will  of 
lands  may  be  also  revoked  by  writing  other  than  a  will,  or  codicil; 
and  then  such  other  writing  must  by  the  statute  be  signed  by  the 
devisor,  in  the  presence  of  three  or  four  witnesses  declaring  the 
same.  The  requisition  in  the  statute  of  the  signature  by  the  devisor 
.  to  such  revocation  in  the  presence  of  three  or  four  witnesses  declar- 
ing the  same,  is  according  to  the  sound  construction  of  the  statute, 
applicable  merely  to  such  other  writing,  and  not  to  a  will,  or  codicil 
of  revocation;  since  the  legislature  could  not  intend  to  require 
that  a  will  or  codicil  amounting  to  a  revo[16]cation  should  be  exe- 
cuted in  one  mode,  and  a  will  or  codicil  originally  disposing  of  lands 
should  be  executed  in  another(,s). 

These  provisions  of  the  statute  in  regard  to  revocation  do  not  ex- 
tend to  personal  estate.  A  will  of  personal  estate  may  be  revoked 
by  another  will,  or  by  a  codicil,  or  other  writing  authenticated  in  the 
same  manner  as  a  will  of  such  property(^).     But  by  the  same  sta- 

(o)  Burtenshaw  v.  Gilbert,  Cowp.  (?)  Mence  v.  Mence,  18  Ves.  jun. 

54.     Onions  v.Tyrer,  1  P.  Wms.  346.  348. 

S.  C.  2  Vern.  742.     Mason  v.  Lim-         (r)  Dickenson  v.  Dickenson,  2  Phill. 

berry,  4  Burr.  2515.     S.  C.  Cora.  Rep.  Rep.  173. 

451.     Rickards  v.  Mumford,  2  Phill.  (s)  Ellis  v.  Smith,  1  Ves.  jun.  11. 

Rep.  123.  (0  Vid.  Brady  v.  Cubitt,  Dougl.  35. 

(n)   See  Sutton  v.  Sutton.   Cowp.  Doe  v.  Pott,  ib.  690.  n.  2.     Onions  v. 

812.  and  Winsor  v.  Pratt,  2  Brod.  &  Tyrer,  1  P.  Wms.  343.    Elhsv.Sraith. 

Bing.  650.  1  Ves.  jun.  11. 


(1)  Pringle  V.  Mucpherson's  Ex.,  2  Desaus.  Rep.  524.    Jackson  v.  Jlollo-tvay,  7  Johns. 
Rep.  394. 

('2)  See  Cogbill  v.  Cogbill,  2  Hen.  k  Munf.  467. 

(3)  Such  alterations,  however,  are  more  e(iuivocal  as  to  intention,  as  persons  are  apt  to 
make  pencil  marks  for  memoranda.     Parkin  v.  Bainbridge,  3  Phill.  Rep.  322. 
3 


16  OF  WILLS  AND  CODICILS.  [bOOK  I. 

tutc(l)  no  will  in  writing  of  personal  estate  shall  be  repealed,  or 
altered  by  parol,  or  will  nunaipative,  unless  the  same  be  committed 
to  writing  in  the  testator's  life,  and  afterwards  read  to,  and  allowed 
by  him,  and  proved  so  to  be  by  three  witnesses  at  the  least(,s).(2) 

Devises  of  customary  freeholds,  or  of  terms  vested  in  trustees  to 
attend  the  inheritance,  or  of  sums  of  money  primarily  charged  on 
lands,  must,  as  we  have  seen,  be  executed  pursuant  to  the  solemni- 
ties required  by  the  statute,  and,  consequently,  fall  within  its  pro- 
visions in  regard  to  revocation(/). 

If  a  testator,  in  consequence  of  fraud,  or  misinformation,  or  mis- 
take in  regard  to  a  fact,  as,  for  example,  the  death  of  a  devisee,  or 
legatee,  who  is  living,  make  a  new  will,  the  former  instrument  shall 
not  be  revoked  by  the  latter(?<).  (3) 

[17]  It  is  essential  that  the  second  will  should  expressly  revoke, 
or  be  clearly  inconsistent  with  the  first,  in  respect  to  the  subject 
matter  of  such  will;  for  no  subsequent  disposition  shall  revoke  a 
prior,  unless  it  apply  to  the  same  subject(t').  It  is  also  necessary 
that  the  second  will  should  be  subsiding  and  effective  at  the  time  of 
the  testator's  death;  if,  therefore,  in  case  of  a  devise  of  lands,  it  be 
not  executed  according  to  the  statute  of  frauds,  it  is  not  effective, 
and  is  as  if  no. second  will  had  existed(t6').(4)  So,  if  the  second  will 
be  effectually  cancelled  in  the  lifetime  of  the  testator,  the  first  will 
shall  operate  as  if  no  other  had  existed;  for  it  is  the  only  will  sub- 
sisting at  the  testator's  death  (a-).  But  the  paiiicular  circumstances 
of  the  cancellation  and  the  case  must  be  looked  to,  for  in  a  late  case. 

(s)  Vid.  infr.  in    note.     Harwood    v.    Goodwright, 

(0  Brudenell  v.  Bough  ton,  2  Atk.  Cowp.  87.  S.  C.  7  Bro.  P.  C.  3-14. 
272.  (lu)  Hyde  v.  Hyde,  3  Ch.  Rep.  155. 

(w)  Campbell  V.  Frerich,  3  Ves.  jun.  Lirabery  v.  Mason,  Com.  Rep.  451. 
321.                                         ■  (x)  Goodright  v.  Glazier,  4  Burr. 

(«)  Onions  v.  Tyrer,  1  P.  Wms.  345,  2512. 


(1)  The  6th  section  of  the  act  of  assembly  of  1705,  is  copied  verbatim  from  the  12th 
section  of  the  statute  of  frauds,  with  the  exception  of  the  number  of  witnesses  required. 
By  the  act  tlie  witnesses  are  to  be  "two  or  more."  Purd.  Dig.  801.  1  Dall.  Laws,  53.  1 
Sm.  Laws,  33.  And  by  the  sixth  section  of  the  act  of  8th  April,  1833,  "  relating  to  last 
wills  and  testaments,"  (Pamph.  Laws,  249.)  a  will  must  "  in  all  cases  be  proved  by  tlie  oaths 
or  affirmations  of  t<vo  or  more  competent  witnesses." 

(2)  JMoritz  V.  Brovgh,  16  Serg.  k  Rawle,  403.  The  prov-isious  of  die  act  extend  to 
wills  oi  land,  which  must  be  revoked  by  writing,  accompanied  with  the  same  solemnities 
as  a  will  of  personal  estate.  Laxvson  v.  JMorrison,  2  Dall.  Rep.  289.  Boudinot  v.  Brad- 
ford, 2  Yeates,  170.  But  the  parol  republication  of  a  foi-mer  will  in  writing  will  revoke 
a  will  of  lands.  Havard  v.  Davis,  2  Binn.  406.  See  as  to  revocations  in  Pennsylvania, 
since  the  act  of  8th  April  1833,  a?2<e,  page  13,  note  (1.) 

(3)  Though  a  devisee  who  by  force  or  fraud  prevents  a  testator  from  cancelling  his 
will  becomes  a  trustee  for  those  who  would  be  entitled  to  the  property  in  case  the  revo- 
cation had  taken  place,  tlie  will  is  not  thereby  revoked.  Gains  v.  Gains,  2  Marsh.  Rep. 
(Kentucky)  190. 

(4)  Taylor  v.  Taylor,^  Nott  &  M'Cord,  485.  (So.  Carolina.)  Reidet  ux  v.  Borland,  14 
Mass.  Rep.  208.    Belt  v.  Belt,  1  Harr.  &  M'Hen.  409. 


CHAP.  I.]  OF  WILLS  AND  CODICILS.  17 

where  a  second  will  was  mutilated  so  as  to  amount  to  a  cancellation, 
such  cancellation  was  held  not  to  revive  the  prior  will  of  nearly  si- 
milar import(y). 

In  case  a  party  leave  two  inconsistent  wills  of  the  same  date,  nei- 
ther of  which  can  be  proved  to  have  been  last  executed  unless  ex- 
plained by  some  act  of  the  testator,  they  are  both  void  for  uncer- 
tainty, and  will  let  in  the  heir{z). 

The  making  of  a  subsequent  codicil  does  not  invalidate  the  former, 
unless  it  appear  to  be  so  intended.  Codicils,  however  numerous, 
may  be  all  effectual(«).  But  a  codicil  may  be  virtually  revoked  by 
another  codicil  of  a  subsequent  date,  although  there  are  no  express 
words  of  revocation  in  the  latter  {ustrument(Z*). 

[18]  There  are  also  other  species  of  revocations  which  I  have  not 
mentioned.  The  statute  of  frauds  extends  not  to  implied  revoca- 
cations,  or  to  such  as  are  in  the  nature  of  ademptions. 

With  respect  to  implied  revocations,  they  depend  altogether  on 
the  supposed  intention  of  the  party.  The  law  will  presume  such  in- 
tention, and  allow  it  to  prevail,  in  case  the  circumstances  of  the  tes- 
tator's situation  be  materially  altered.  Hence,  if,  after  the  making 
of  his  will,  he  marry,  and  have  a  child,  this  is  a  constructive  revoca- 
tion of  the  will  which  he  made  in  a  state  of  celibacy (c);(l)  so  mar- 
riage, and  the  birth  of  a  posthumous  child,  afibrd  the  same  inference: 
or  rather  in  such  cases  a  tacit  condition  is  annexed  to  the  will  at 
the  time  of  making  it,  that  the  party  did  not  then  intend  that  it 
should  take  effect,  if  a  total  change  should  happen  in  the  situation  of 
the  family(f/).  But  the  presumption,  like  all  others,  may  be  re- 
butted by  every  sort  of  evidence(e).(2) 

(y)  Moore  v.  Moore,   1  Phill.  Rep.  (c)  Lugg- v.  Lugg,  Ld.  Raym.  441. 

375  and  406.                                             •  Cook    v.    Oakley,    1    P.    Wms.    304. 

(2)  Phipps  V.  Earl  of  Anglesea,  5  Spraage  v.  Stone,  Ambl.  721.  and  vid. 

Bro.  P.  C.  45.     Onions  V.  Tyrer,  1  P.  Christopher   v.   Christopher,   4  Burr. 

Wms.  344.  note  1.  2182.  note. 

(a)  Swinb.  Part  1.  s.  5.    Hitchins  v.  (d)    Lancashire    v.    Lancashire,    5 

Basset,  1  Show.  549.     Willet  v.  Sand-  Term  Rep.  49. 

ford,  1  Ves.  187.  (e)  Brady  v.  Cubitt,  Dougl.  31.  See 

(J)  Methuen  v.  Methuen,  2  Phill.  1  P.  Wms.  304.  note  4. 
416. 


(1)  Per  M'Kean,  C.  J.,  in  Laivson  v.  Momson,.^  Dull.  Rep.  289,  decided  in  1792. 
Wilcox  V.  Jiooies,  1  Wash.  Rep.  140.  See  a  case  mentioned  by  CaiTmgton,  J.,  3 Call's 
Rep.  341.  ]inush\.  J  Vilkhis,  A  Johns.  Cha.  Rep.  506.  Tomlinson\.  TomUmon,Adm.,  1 
Ashm.  Rep.  224. 

(2)  Jinish  V.  Wilkins.  The  presumption,  Irowevcr,  (die  strength  of  -which  varies  ac- 
cording to  circumstances,)  may  be  rebutted  by  evidence  (strong  in  proportion)  to  show 
that  Uie  testator  meant  it  to  operate  notwithstanding  bis  marriage,  and  the  biith  of  issue; 
but  such  evidence  to  be  eficctual  must  satisfy  tlie  Couvi  imetjitivocalli/.  Gibbons  v.  Cross, 
2  Addam's  Rep.  455.  In  Pennsylvania  it  is  provided  l)y  the  23d  section  of  the  act  of  19tl» 
April  1794,  and  by  the  15th  section  of  tbe  act  of  8tb  April  1833,  (Pamph.  Laws,  251.) 
«  that  where  any  person,  from  and  after  the  passing  of  this  act,  shall  make  his  or  lier  last 
will  and  testament,  and  shall  aftnrwnrds  marry  or  have  a  child  or  chibh-en  not  provided 


18  OF  WILLS  AND  CODICILS.  [bOOK  1. 

Yet  it  seems  there  is  no  case  in  which  marriage  and  the  birth  of  a 
child  have  been  held  to  raise  an  implied  revocation,  unless  there  has 
been  a  total  disposition  of  the  whole  estate.(L)  In  cases  of  personal 
property  it  is  always  a  total  disposition,  because  by  the  appointment 
of  an  executor,  the  whole  is  vested  in  him(e). 

[19]  To  raise  this  presumption  of  a  revocation,  both  the  circum- 
stances of  a  mrfn's  marriage  and  of  the  birth  of  a  child  must  con- 
spire:(/")  neither  the  subsequent  marriage  of  a  man,  nor  the  subse- 
quent birth  of  a  child,  shall  o[  Use  (/'have  that  effect.  (,§•).  (2) 

Jiut  a  will  made  in  favour  of  children  of  a  first  marriage  shall  not 
be  revoked  by  a  subsequent  marriage,  and  the  birth  of  children  of 
such  subsequent  marriage,  the  second  wife  and  her  children  being 
provided  for  b}-  settlement(/i),(3) 

In  case  where  a  testator,  a  widower,  having  a  son  and  two  daugh- 
ters, by  will  gave  all  his  real  and  personal  estates  in  trust,  subject  to 
debts,  for  those  children,  and  in  case  of  their  deaths  over,  and  after- 
wards married,  had  a  daughter  and  died;  the  general  principles  of 
this  branch  of  the  law  are  so  clearly  defined  by  the  Master  of  the 
Rolls,  that  it  is  thought  most  useful  to  introduce  his  judgment  ver- 
batim.  "Long  after  it  had  been  settled  by  decisions  of  the  eccle- 
siastical court,  with  the  concurrence  of  common  law  judges  sitting 
in  the  Court  of  Delegates,  that  marriage  and  the  birth  of  a  child 

(e)    Brady   v.    Cubitt,   Dougl.    39.  in  note. 

Southcot  V.  Watson,  3  Atk.  228.  {g)   Lancashire    v.    Lancashire,   5 

(/)  Woodcs.  373.  vid.  Gcodtitle  v.  Term    Rep.   51,   in   note.      White   v. 

Newman,  3  Wils.  51G.  and  2  Fonbl.  2d  Barford,  4  Maul,  and  Sel.  10. 

edit.    350.    note   (b).    Sed.   vid.    Lan-  (//)  Ex-parte  the  Earl  of  Ilchester, 

cashire  v.  Lancashire,  5  Term  Rep.  52,  7  Yes.  jun.  348. 


for  in  any  such  will,  and  die  leaving  a  widow  and  child,  or  either  widow  or  child,  although 
such  child  or  children  be  born  after  the  deatli  of  their  father,  every  such  person,  so  far  as 
shall  regard  the  widow,  or  cMld,  or  children  after  bom,  sliall  be  deemed  and  construed  to 
die  intestate,  and  such  child  or  childi'en  sliall  be  entitled  to  such  gurparts,  shares,  and 
dividends  of  tlie  estate  real  and  personal  of  the  deceased,  as  if  he  had  actually  died  with- 
out any  will."  (Purd.  Dig.  802.  3  Dall.  Laws,  521.  3  Sra.  Laws,  152.)  Marriage,  and 
the  birtli  of  posthumous  or  odier  issue,  since  the  passage  of  tliis  act,  do  not  amount  to  a 
total  revocation  of  a  will  made  by  a  single  man,  even  where  Uie  subsequent  issue  is  the 
testator's  only  child.  They  amount  to  a  revocation  pro  tanto  only,  namely,  so  far  as  re- 
gards the  widow  and  child;  but  as  respects  provisions  not  interfering  witJi  their  interests, 
such  as  the  appointment  of  executors,  or  a  power  to  sell  lands  for  the  payment  of  debts, 
kc.  the  will  remains  in  force.     Coates  v.  Hughes,  3  Binn.  498. 

(1)  Per  Roane i.,  3  Call's  Rep.  33". 

(2)  Brush  v.  IVilkhis,  4  Johns.  Cha.  Rep.  506.  [semble.)  JMassey  v.  j\Iassey''s  Lessee, 
4  Harr.  k  Johns.  141.  See  3  Mass.  Rep.  21.  In  North  Carolina,  before  tlie  act  of  1808, 
the  birth  of  a  child  after  the  making  of  a  will,  did  not  amount  to  a  revocation.  JlPCay  v. 
Al^Caif,  1  Murphy's  Rep.  447.  In  Pennsylvania,  the  subsequent  birtli  of  issue  is,  in  it- 
self, a  revocation  of  a  previous  will,  as  it  produces  a  change  in  the  obligations  and  duties 
of  the  testator.     Tomlinson  v.  TomUnson,  Jldm.,  1  Ashm.  Rep.  224. 

(3)  Yerby  v.  Yerby,  3  Call's  Rep.  334,  in  which  there  was  no  settlement,  and  the  cliil- 
dren  of  the  subsequent  marriage  were  totally  unprovided  for. 


CHAP.  I.]  OF  WILLS  AND  CODICILS.  19 

\yould  amount  to  a  revocation  of  a  will  of  personal  property,  it  re- 
mained a  doubt  whether  such  an  alteration  of  circumstances  would 
have  the  same  effect  with  regard  to  a  will  of  real. estate:  but  it  is  now 
settled,  that  even  a  devise  of  land  may  be  revoked  by  what  Lord 
Kenyan^  in  the  case  of  Doe  on  the  demise  of  Lancashire  v.  Lan- 
cashire, 5  T.  Rep,  58.,  calls  'a  total  change  in  the  situation  of  the 
testator's  family.'  What  may  be  deemed  such  a  total  change  may 
be  matter  of  controversy  in  each  new  case;  but  all  the  cases,  in  which 
hitherto  wills  of  land  have  been  set  aside  upon  this  doctrine,  have 
been  very  simple  in  their  circumstances;  and  such  as,  when  the  doc- 
trine was  once  received,  could  admit  of  no  doubt  with  respect  to  its 
application.  In  all  of  them  the  will  has  been  that  of  a  person,  who, 
having  no  children  at  the  time  of  making  it,  has  afterwards  married, 
and  had  an  heir  born  to  him.  The  effect  has  been  to  let  in  such  af- 
ter-born heir  to  take  an  estate,  disposed  of  by  a  will,  made  before  his 
birth.  The  condition,  implied  in  those  cases,  was,  that  the  testator, 
when  he  made  his  will  in  favour  of  a  stranger  or  some  more  remote 
relation,  intended  that  it  should  not  operate  if  he  should  have  an  heir 
of  his  own  body.  In  this  case  there  is  no  room  for  the  operation  of 
such  a  condition;  as  this  testator  had  children  at  the  date  of  the  will, 
of  whom  one  was  his  heir  apparent,  who  was  alive  at  the  time  of 
the  second  marriage,  of  the  birth  of  the  children  by  that  marriage, 
and  of  the  testator's  death.  Upon  no  rational  principle  therefore  can 
this  testator  be  supposed  to  have  intended  to  revoke  his  will  on  ac- 
count of  the  birth  of  other  children;  those  children,  not  deriving  any 
benefit  whatsoever  from  the  revocation;  which  would  have  operated 
only  to  let  in  the  eldest  son  to  the  whole  of  that  estate,  which  he  had 
by  the  will  divided  between  that  eldest  son  and  the  other  children 
of  the  first  marriage.  It  is  true,  the  ecclesiastical  court  has  decided, 
that  the  will  was  revoked  as  to  the  personal  estate;  that  is,  in  oppo- 
sition to  their  decision  in  Thompson  v.  Shepjjard  in  1779;  where, 
under  circumstances  precisely  the  same,  the  will  was  held  not  re- 
voked even  as  to  the  personal  estate.  There  was  in  that  case  an  ap- 
peal to  the  Delegates,  but  it  was  not  prosecuted.  The  revocation 
however  as  to  the  personal  estate  had  an  effect,  which  might  perhaps 
have  been  intended  by  the  testator — that  of  letting  in  the  after-born 
children  with  those  of  the  first  marriage:  but  the  principle  of  the 
decision  has  no  bearing  whatsoever  upon  the  devise  of  the  real  estate; 
which,  according  to  my  opinion,  stands  unrevoked(/)." 

•  In  a  late  most  important  case,  where  a  man  made  a  will,  providing 
for  all  his  children  then  living,  and  with  which  his  wife  was  ensicnt, 
the  birth  of  other  children,  combined  witli  circumstances  of  large  in- 
crease of  property,  and  declarations  of  the  testator,  were  held  to  re- 
voke his  will(^). 

If  a  single  woman  make  a  v/ill,  her  subsequent  marriage  shall 

(0  Sheath  v.  York,  1  Ves.  &  Bea.     ibid.  312. 
390.  and  see  lioUoway  v.  Clarke,  1         {k)  .lohnston  v.  Johnston,  1  Phill. 
Phill.  Hep.  339.     Emerson  v.  Bovillc,     Kep.  445. 


19  OP  WILLS  AND  CODICILS.  [bOOK  I.^ 

alone  revoke  it(/);  nor  slialJ  if  be  revived  by  the  death  of  her  hus- 
band(w?).(l) 

Tlierc  are  also  revocatiMis(?i)  in  the  nature  of  ademptions.  If  the 
testator  do  any  act  inconsistent  witli  the  operation  of  the  will,  such 
act  shall  amount  to  a  revocation  of  it.  To  render  a  cancellation  ef- 
fectual, we  have  seen,  the  intention  of  the  testator  must  in  all  cases 
concur,  and  an  implied  revocation  is  founded  entirely  on  the  inten- 
tion: but  the  species  of  revocation  I  have  just  mentioned  is  altogether 
independent  of  intcntion(o),  and  may  prevail  even  in  opposition  to 
it.  It  is  true  that  before  the  statute  of  frauds  the  in[20]tention  was 
the  criterion.  It  was  therefore  held,  that  where  A.  having  devised 
lands  to  13.  in  fee,  granted  to  B.  a  lease  of  the  same  lands,  to  com- 
mence after  ^^.'s  death,  such  act  revoked  the  disposition 'of  the  will, 
on  the  ground  that  the  lease  clearly  implied  an  alteration  of  intention, 
namely,  to  give  the  devisee  a  less  estate(7;).(2)  But  since  the  sta- 
tute, I  conceive  such  a  case  would  be  dillercntly  decided:  The  lease 
effectuating  no  alienation  of  the  subject  matter  of  the  devise,  would 
not  be  held  to  defeat  the  operation  of  the  will ;  nor  if  A.  were  to  de- 
vise lands  to  B.  in  fee,  and  afterwards  mortgage  to  him  the  same 
lands  for  a  term  of  years,  would  the  devise  be  revoked(y).  On  the 
same  principle,  since  the  statute  of  frauds,  the  subsequent  act  of  the 
devisor  must  be  complete  to  produce  such  effect.  Before  the  statute, 
a  deed  of  feoffment  without  livery,  a  bargain  and  sale  without  en- 
rolment, a  grant  of  reversion  without  attornment,  were  held  to  re- 
voke a  will  of  lands,  on  the  ground,  that  although  these  acts  were 
themselves  imperfect,  yet  tliey  equally  indicated  a  change  of  the 
devisor's  intention;  but  since  the  statute,  1  apprehend  that  acts  thus 
incomplete,  not  amounting  to  an  alienation  of  the  estate  inconsistent 
with  such  will,  would  not  be  more  effectual  to  revoke  it  than  a  sub- 
sequent will  imperfectly  executed(/*). 

And  altogether  to  defeat  the  disposition  by  the   will,   there  must 

(0  4  Co.  60.     Cotter  v.  Layer,  2  P.  (p)  Coke  v.  Bullock,  Cro.  Jac.  49. 

Wms.  G24.     Hodsden  v.  Lloyd,  2  Bro.  (rj)  As   to  the  subsequent  case  of 

C.  Ca.  534.  Harkness  v.  Bailey,  Prec.  in  Ch.  514. 

(/n)    Doe  V.  Staple,  2  Term   Rep.  it  is  inaccurate ;  and  see  Baxter  v.  Dy- 

695.  er,  5  Ves.  jun.  656.  and  Peach  v.  Phil- 

(n)  Brudenell  v.  Boughton,  2  Atk.  lips,  ibid.  664. 

272.  (r)  Sed  vid.  ex-parte  the  Earl  of  II- 

(o)  Abury  v.  Miller,  2  Atk.  598.  Chester,  7  Ves.  jun.  378. 

Parsons  v.  Fjeeman,  3  Atk.  745.  • 


(1)  Mr.  Cruise,  in  his  Digest  of  the  Law  of  Real  Property,  (2d  Am.  edit.  p.  118.  vol. 
2.)  states  the  law  to  be,  tliat  "in  a  case  of  thisTiind,  if  the  wife  survives  her  husband,  her 
will  is  revived,  and  takes  effect  as  if  she  had  never  been  married."  See  also  lieeve's  Ddm. 
Relations,  161.  It  will  be  found  upon  exanunation  that  tlie  case  of  Doe  v.  Staple  by 
no  means  estaldishes  the  docti'ine  of  the  text,  though  some  of  the  dicta  of  Lord  Kenyan 
support  it,  wlien  the  facts  of  the  case,  with  reference  to  which  he  spoke  in  giving  judg- 
ment, are  not  taken  into  consideration. 

(2)  Per  M  'Kean,  C.  J. ,  2  ball.  Rep.  289. 


CHAP.  I.]  .OF  WILLS  AND  CODICILS.  21 

[21]  be  a  subsequent  conveyance  of  the  whole  estate.  It  must  be  com- 
mensurate with  the  appointment  which  the  will  has  made.  If  the 
inconsistency  between  the  disposition  by  the  will,  and  the  subse- 
quent disposition,  be  merely  partial,  the  revocation  shall  not  extend 
beyond  such  inconsistency.  As,  where  A.  devises  an  absolute  es- 
tate in  fee  to  B,,  and  afterwards,  by  a  subsequent  devise,  gives  him 
only  an  estate  tail  in  the  same  land,  it  is  a  revocation  merely  to  the 
extent  of  the  difference  between  an  estate  tail  and  an  estate  in  fee(r). 
So,  if  A.  devise  all  his  real  estate  to  B,,  and  afterwards,  on  B.'s  mar- 
riage, settle  upon  her  a  part  of  such  .estate,  in  respect  to  the  remain- 
ing part  of  it  the  will  shall  operate(.s).  So,  if  A.  devise  lands  in  fee 
to  B.,  and  afterwards  grant  a  lease  to  C.  for  a  term  of  years  to  com- 
mence after  A.'s  death,  or  mortgage  the  lands  to  C.  for  a  term  of 
years  or  in  fee,  the  devise  of  the  fee,  subject  to  the  lease(^)  or  mort- 
gage(?«),  either  of  which  is  merely  the  inti-oduction  of  an  incumbrance, 
shall  continue  good.  If  the  owner  of  an  unqualified  equitable  fee 
devise  it  by  his  will,  and  afterwards  the  unqualified  legal  fee  be  con- 
veyed to  him,  the  will  is  not  thereby  revoked,  because  such  convey- 
ance was  incident  to  the  equitable  fee  devised.  But  if  he  afterwards 
take  a  qualified  conveyance  of  the  legal  fee,  for  the  purpose  of  pre- 
venting dower,  it  is  a  revocation  of  the  will,  being  a  change  in  the 
quality  of  the  estate,  and  not  incident  to  the  equitable  fee(y). 

A  surrender  made  by  a  testator  of  copyholds  to  the  uses  of  his 
marriage  settlement,  is  not  a  total  revocation  of  a  surrender  made  to 
the  use  of  his  will,  and  a  devise  of  such  copyholds,  by  the  devisee, 
takes  the  copyhold  subject  to  the  charge  created  by  the  marriage  set- 
tlement(//;). 

Where  a  testator  devised  real  and  personal  estate  to  certain  uses, 
and  afterwards  by  deed  conveyed  it  to  the  same  uses  until  marriage, 
and  then  to  new  uses,  providing  for  his  intended  wife  and  the  issue 
of  the  marriage,  and  after  the  deed,  and  befoi'e  mai-riage,  by  codicil 
duly  attested,  and  directed  to  be  annexed  to  his  will,  he  imposed  a 
forfeiture  in  case  of  his  wife  being  disturbed,  and  after  tlie  codicil 
married  :  it  was  held  that  the  settlement  revoked  the  will,  and  that 
the  will  was  republished  by  the  codicil;  that  the  new  uses  springing 
on  the  marriage  did  not  revoke  the  codicil,  nor  did  the  marriage,  and 
birth  of  children,  as  being  contemplated  by  the  will(.r). 

I  have  already  stated  that  this  species  of  revocation  may  operate 
even  in  opposition  to  the  devisor's  intention(y).  Hence,  if  A.,  after 
making  his  will,  suffer  recovery,  levy  a  fine,  or  convey  his  estate  by 
lease  or  release,  the  devise  will  be  revoked,  although  the  use  result, 

(r)  Harwoodv.  Goodright,  Cowp.  90.  {w)  Vawser  V.  Jeffery,  3  Barn.  & 

(«)  Clarke  v.  Berkeley,  1  Eq.  Ca.  Aid.  462.  and  2  Swans.  Re'p.  268. 

Abr.  412.     S.  C.  2  Vern.  720.  (x)  Jackson  v.   H[urlock,  2  Eden's 

(/)  Coke  V.  Bullock,  Cro.  Jac,  49.  Rep.  26o'. 

Roll.  Abr,  616.  (y)  Banks  v.   Sutton,  2  P.  Wms. 

(m)    Harkness  v.  Bailey,  Prec.  in  71H.     Sparrow  v.   Hardcastle,  3  Atk. 

Ch.  515.     Tucker  V,  Thurston,  17  Ves.  803.  1  Roll.  Abr.  614.     Swift  v.  Rob- 

134.  erts,  Arnbl.  618.     Darley  v.  Darley,  ib. 

(v)  Ward  v.   Moore,  4  Mad.  Rep.  653.  and  Dick.  Rep.  397.  S.  C. 
368. 


22  OF  WILLS  AND  CODICILS.        •  [bOOK  I. 

or  bo  limited  to  A.  himself(y).  So,  if  A.  devise  lands,  [22]  and  after- 
wards make  a  feoffment  to  the  use  of  his  will(r),  or  if  A.  covenant 
to  levy  a  fine  to  the  use  of  such  person  as  he  sliall  name  by  his  will, 
then  makes  his  will  and  devises  his  land,  and  afterwards  levies  a  fine 
in  performance  of  his  covenant(a):  or  if  A.,  seised  in  fee,  devise  an 
estate  in  fee  to  B.,and  by  a  conveyance  takes  back  an  estate  from  B. 
infee(/;);  or,  if  A.  seised  in  fee,  thinking  he  has  only  an  estate  tail, 
suffer  a  recovery  in  order  to  confirm  his  will(c),  all  these  cases 
amount  to  a  revocation.  So,  if  A.  be  disseised,  after  making  his 
will,  and  die  before  re-entry,  the' disseisin  will  have  the  same  ef- 
fect(c^). 

These  are  the  necessary  consequences  flowing  from  the  nature  of 
a  devise  of  lands  as  before  defined.  It  is  not  an  institution  of  an  heir: 
It  is  in  the  nature  of  a  conveyance  :  It  is  an  appointment  of  the  spe- 
cific estate,  to  be  completed  by  a  subsequent  event,  namely,  th6  death 
of  the  devisor.  The  devisor  must,  therefore,  continue  to  have  it  un- 
altered, and  without  any  new  modification,  to  the  time  of  his  death, 
when  the  devise  is  to  take  effect.  If,  therefore,  any  new  disposition 
be  made  subsequently  to  the  will,  or,  in  other  words,  any  new  con- 
veyance of  that  which  had  been  conveyed  by  the  will,  it  shall  defeat 
the  will.  It  implies  an  alteration,  and  the  rule,  that  the  estate  must 
pass  by  the  first  complete  conveyance,  becomes  applicable(e).(l) 

[23]  On  the  same  principle,  where  A.,  seised  of  a  lease  for  lives, 
devises  it,  and  afterwards  renews,  the  renewal  of  the  lease  is  a  revo- 
cation of  the  will  as  to  this  particular;  for.  by  the  surrender  of  the 
former  lease,  the  testator  puts  it  out  df  him,  divests  himself  of 
the  whole  interest,  and  it  is  gone,  so  that  there  be  nothing  left  for  the 
devise  to  work  ujxjn,  the  will  must  fail(/).(2)  And  the  law  is  the 
same  in  regard  to  chattel  leases,  if  specially  bequeathed(^);  but  not 

otherwise(A). 

• 

(y)  Parsonsv.  Freeman.  3  Atk,  741.  jun.  42G.     Sparrow  v.  Hardcastle,  3 

Darley  V.  Darley,Ambl.  653.     Parker  Atk.   803.     Harwood    v.    Goodright, 

V.  Biscoe,  3  Moore,  24.'  Cowp.   90.    Hogan    v.   Jackson,    ib. 

(2)  Sparrow  v.  Hardcastle,  3  Atk.  305. 

804.     Swift  V.  Roberts,  Ambl.  618.  (/)  Marwood  v.  Turner,  3  P.  Wms. 

(o)  Swift  V.  Roberts,  Ambl.  610.  170,  171. 

lb)  Parsons  V.  Freeman,  3  Atk.  742.  (g)  Abney  v.  Miller,  2  Atk.  527. 

Bridges  V.  Duchess  of  Chandos,  2  Ves.  Carte  v.  Carte,  3  Atk.  174.     Stirling 

jun.  431.  V.  Lidiard,-  3  Atk.  199.     Rudstone  v. 

(c)  Sparrow  V.  Hardcastle,  3  Atk.  Anderson,  9  Ves.  418.     Attorney-Gen- 

803.   See  also  Darley  V.  Darley,  Ambl.  eral  v.  Downing,  Ambl.  571.     Hone  v. 

653.  and  Dick.  Rep.  397.  S.  C.  Medcraft,  1  Bro.  C.  C.   261.     Coppin 

(«')  1  Roll.  Abr.  616.     Attorney-Ge-  v.   P'ernyhough,  2   Bro.    C.   C.   291. 

neral  v.  Vigor,  8  Ves.  jun.  282.  See  1  P.  Wms.  597. 

(c)    Swift  V.  Roberts,  Ambl.  618.  (A)  Bovvers    v.    Littlewood,    1    P. 

Bridges  v.  Duchess  of  Chandos,  2  Ves.  Wms.  595. 


(1)  Minuse  v.  Cox,  5  Johns.  Cha.  Rep.  4.'5().    Wallon  v.  Walton,  7  Johns.  Cha.  Rep.  20". 

(2)  So  if  the  testator,  after  devising  a  mortgage,  forecloses  it,  or  takes  a  release  of  tlie 
equity  of  redemption,  it  is  a  revocation  of  the  devise.     Ballardw  Parker,  5  Pick.  Rep.  1 12. 


CHAP.    I.]  OF  WILLS  AND  CODICILS.  23 

So,  if  A.  specifically  bequeath  to  B.  a  gold  cup,  under  a  particular 
description,  and  afterwards  sell  or  give  it  awa)^,  and  then  buy  another 
gold  cup,  such  newly  purchased  cup  shall  not  pass  to  B.  by  the  will, 
inasmuch  as  the  identical  subject  is  gone(/).(l) 

If  the  subsequent  conveyance  be  procured  by  fraud,  it  shall  have 
no  effect(A^).(2.) 

Such  are  the  pi'inciples  of  law  in  regard  to  revocations.  Equity 
also  proceeds  on  the  same  principles;  and,  following  the  law,  admits 
no  revocation  that  would  not  be  a  revocation  on  legal  grounds. 
Therefore  if  A.,  having  an  equitable  estate,  make  his  will,  and  then 
execute  a  conveyance,  and  dispose  of  it,  or  declare  the  uses  [24]  to 
himself,  that  will  be  a  revocation,  in  case  it  would  so  operate  at  law 
on  a  legal  estate(f).(3) 

But  still  this  revocation  is  bounded  by  the  rule  of  law;  and  there- 
fore, if  the  conveyance  be  of  part  only,  and  for  a  partial  purpose,  it 
shall  be  a  revocation  only  j)'^o  tanto[m).{4) 

In  cases  of  mortgage,  if,  as  1  have  already  stated,  A.  devise  to  B. 
in  fee,  and  afterwards  mortgage  to  C.  for  a  term  of  years,  that  at  law 
is  no  revocation  of  the  fee.  If  it  be  a  mortgage  in  fee,  a  court  of  law 
has  no  concern  with  the  disposition  of  the  equity  of  redemption.  It 
takes  no  notice  of  such  an  interest,  but  considering  the  land  only  as 
a  pledge  for  a  debt,  which  is  the  personal  estate  of  the  mortgagee,  of 
necessity  holds,  that  the  land  to  all  other  purposes  remains  unaltered 
in  the  mortgagor.  It  merely  decrees  the  redemption  to  that  person 
who  would  have  been  entitled  if  the  mortgage  had  never  existed, 
that  is,  the  devisee.  Being  discharged,  it  is  as  if  it  had  never  exist- 
ed. As,  in  cases  at  law,  if  the  mortgage  be  for  a  term  of  years,  it  is 
no  revocation,  it  would  be  incongruous  that  it  should  be  so  in  equity 
in  the  case  of  a  mortgage  in  fee,  where  the  act  done  gives  as  at  law 
nothing  more  than  a  pledge  for  a  debt  to  the  mortgagee,  which  is 
personal  estate,  and  would  devolve  upon  his  executors(?z).  So,  in 
the  case  of  a  conveyance  for  payment  of  debts,  the  surplus  resulting 
or  being  ex[25]pressly  reserved  to  the  party  making  it,  and  his 
heirs,  it  is  precisely  the  same  case  as  that  of  a  mortgage.  There  is 
no  distinction  between  a  general  charge  for  debts  and  a  charge  for  a 
particular  debt.  The  alteration  of  the  estate  in  substance  extends  no 
further  than  to  let  in  the  particular  purpose;  and  whether  definite 

(0  Off.   Ex.   23.     Vid.    Abney  v.  2  Ves.  jun.  428.    Rawlins  v.  Burgis,  2 

Miller,  2  Atk.  599.  Ves.  &  Bea.  381. 

(Jc)  Clymerv.  Littler,  3  Burr,  1244.  (m)  Brydges  v.  Duchess  of  Chandos, 

Hawes  v.  Wyatt,   3  Bro.  C.  C.  156,  2  Ves.  jun.  428. 

S.  C.  2  Cox.  Rep.  203.  {n)  2  Ves.  jun.  428.     Ambl.  31. 

(/)  Brydges  V.  Duchess  of  Chandos, 


(1)  Walton  V.  Walton,  7  Johns.  Cha.  Rep.  2f.4. 

(2)  Smitkwick  v.  Jordan,  15  Mass.  Rep.  113- 

(3)  Walton  v.  Walton,! iohx\%.  Cha.  Rep.  270. 

(4)  Livingstoji  v.  Livingston,  3  .lohns.  Clui.  Rep.  L48.     Jlugltes  v.  Hughes,  2  Muuf. 
209.     Matter  ofJVan  Mickle,  14  Jolms.  Rep.  324. 

4 


25  OF  WILLS  AND  CODICILS.  [bOOK  I. 

for  a  particular  debt,  or  indefinite  for  all  debts,  makes  no  difference 
(o).  Therefore  these  cases  have  been  determined  in  strict  analogy 
to  the  law. 

In  like  manner,  if  A.  have  an  equitable  interest  in  fee  in  an  estate, 
and  afterwards  takes  a  conveyance  of  the  legal  estate  to  the  same  uses; 
as,  where  A.  enters  into  articles  of  agreement  with  B.  to  buy  lands 
of  him,  and  afterwards  devises  those  lands,  and  then  B.  conveys  the 
same  pursuant  to  the  articles,  this  is  no  revocation  in  equity;  for  the 
equitable  right  which  A.  has  to  the  lands  to  be  purchased  shall  pass 
by  the  will,  and  his  heir  at  law  be  a  trustee  for  the  devisec(yj). 

In  the  case  of  a  recovery  after  a  will,  though  in  terms  showing 
clearly  no  intention  to  revoke,  a  recovery  suflered  after  a  will  is  as 
much  a  revocation  in  a  court  of  equity  as  it  is  in  a  court  of  law.  (y) 
So,  if  A.,  after  making  his  will,  covenant  for  a  valuable  consideration 
to  convey  the  devised  estate  to  B. ;  although  A.  die  bc[26]fore  the 
contract  is  executed,  yet  the  covenant  shall  revoke  the  will,  on  the 
equitable  principle,  that  what  ought  to  be  done  is  supposed  to  be 
done:  therefore,  as  at  law,  if  the  covenant  had  been  performed  in  the 
testator's  lifetime,  it  would  have  amounted  to  a  revocation,  the  cove- 
nant by  analogy  shall  have  the  same  effect  in  cquity(r);(l)  or  rather 
it  constitutes  the  devisee  a  trustee  to  perform  the  contract  for  the 
benelit  of  the  executor. 

In  regard  to  the  republication  of  wills,  since  the  statute,  no  devise 
of  lands  can  be  repuljlished,  unless  it  be  re-executed  by  the  devisor 
with  the  same  solemnities  with  which  it  was  executed  at  first;  or  by 
a  codicil  executed  in  the  same  manner,  in  terms  ratifying,  confirming, 
or  republishing  the  will(5),  or  expressive  without  being  restricted  to 
any  precise  form  of  words(/),  of  his  intention  that  the  will  should 
be  considered  as  bearing  the  same  date  with  the  codicil(r^).  A  codi- 
cil so  executed,  although  it  relate  merely  to  personal  estate,  yet,  if  it 
contain  a  general  clause  of  confirmation  of  the  will,  or  sufiiciently  in- 
dicate an  intention  that  the  will  shall  be  deemed  of  the  same  date 
with  the  codicil,  shall  have  the  same  eSeci{v).{2)     In  case  the  will 

(o)  Brydges  v.  Duchess  of  Chandos,  Rider  v.  Wager,  ib.  329.     Edwards  v. 

2  Ves.  jun.  428.     See  also  Williams  v.  Freeman,   ib.  43G.     Bennett  v.  Lord 

Owen,  ibid.  595,  and  Oave  v.  Holford,  Tankerville,  19  Ves.  170. 
ibid.  G03,  in  note,  and  3  Ves.  jun.  650.  (s)  Atcherley  v.  Vernon,  Com.  Rep. 

(p)  Marwood  v.  Turner,  3  P.  Wms.  381.     Gibson  v.  Lord  Moiitfort,  1  Ves. 

169.     Greenhill  v.  Greenhill,  2  Vern.  492. 
679.  (0  Potter  v.  Potter,  1  Ves.  442. 

(y)  Darley  v.   Darley,  3  Wils.  G.         (w)  Barnes  v.  Crowe,  1  Ves.  jun. 

Brydges  V.  Duchess  of  Chandos,  2  Ves.  486.     4  Bro.C.  C.  2.  S.C. 
jun.  430.  (f)  Gibson  v.  Ld.  Montfort,  1  Ves. 

(r)  Cotter  V.  Layer,  2  P.  Wms.  624.  493. 


(1)  An  agreement  to  sell  land,  made  subsetiuent  to  the  execution  of  his  will,  in  pur- 
suance of  which  articles  were  prepared,  and  bonds  for  tiie  payment  of  the  purchase  mo- 
ney taken  by  the  testator,  was  held  not  to  be  a  revocation  of  the  w;ill  at  la-w.  Hall  et  ux. 
V.  Bray,  Coxe's  N.  J.  Rep.  21^. 

(2)  Dimlap  v.  Dunlap,  4Desaus.  Rep.  32L 


CHAP.  I.]  OF  WILLS  AND  CODICILS.  26 

be  republished  by  a  codicil,  the  will  and  codicil  are  considered  in 
point  of  law  as  constituting  [27]  but  one  instrument(?^).  Therefore, 
in  all  these  instances,  lands  purchased  after  the  date  of  the  will,  and 
before  its  re-execution,  or  before  the  date  of  the  codicil,  or  lands 
contracted  for  before  the  date  of  the  will,  but  conveyed  between  the 
date  of  the  will  and  codicil(a,'),  shall  pass  under  the  will,  if  the  terms  of 
'  the  will  be  sufficiently  comprehensive  to  include  them(l).  For,  when 
a  will  is  republished,  the  effect  is,  that  the  terms  and  words  of  the 
will  shall  be  construed  to  speak  with  regard  to  the  property  the  tes- 
tator is  seised  of  at  the  date  of  the  republication,  just  the  same  as  if 
he  had  such  additional  property  at  the  time  of  making  his  will. 
Hence,  if  A.  devise  lands  by  the  name  of  B.,  C,  and  D.,  and  purchase 
new  lands,  and  republish  his  will,  the  republication  does  not  con- 
cern such  new  lands,  because  the  vt^ill  speaks  only  of  the  particular 
lands  B.,  C,  and  D.  (2)  But  if  the  testator  in  his  will  say,  I  give  all 
my  real  estate,  a  republication  will  affect  such  newly  purchased  lands, 
because  it  is  then  the  same  as  if  the  testator  had  made  a  new  will(y). 
So,  where  a  testator  charged  all  his  estates  with  payment  of  debts, 
and  made  his  son  residuary  legatee,  and  afterwards  purchased 
copyholds,  which  were  duly  surrendered  to  the  use  of  his  will,  and 
by  codicil  devised  those  copyholds  to  his  son  in  fee,  the  codicil  was 
held  a  republication  of  the  will,  so  as  to  subject  the  copyholds  to  the 
payment  of  debts(2-).  Nor  is  an  actual  annexation  of  the  codicil  to 
the  will  essential  to  its  republication(«).  Whether  a  mere  annex- 
ation to  the  will  of  the  codicil  so  executed,  but  silent  in  respect  to 
any  intention  of  republishing  the  will,  shall  have  such  operation,  is  a 
point  on  which  different  opinions  have  prevailed.  Lord  Camden,  C. 
thought  that  annexation  would  of  itself  demonstrate  that  intention(6) ; 
but  by  other  authorities  it  has  been  held  that  annexation  alone  would 
not  be  thus  effectual(c). 

[28]  If  a  will  of  lands  be  not  executed  pursuant  to  the  statute, 
although  a  codicil  reciting  the  will  be(f/)  thus  executed,  yet  it  has 
been  held  that  the  codicil  shall  not  effectuate  the  will. 

{w)  Atcherley  v.  Vernon,  Com.  Rep.  («)  Potter  v.  Potter,  1  Ves.  442. 

382,  Barnesv.  Crowe,  I  Ves.jun.  49G.  (6)  Attorney-General  v.  Downing, 

{x)  Goodtitle  v.  Meredith,  2  M?iul.  Ambl.  571. 

&  Sel.  5.    Hulme  v.  Heygate,  1  Meri.  (f)  Sympson  v.  Hornsby,  Prec.  Ch. 

Rep.  285.  439.    HuUon  v.  Sympson,  2  Vern.  722. 

(y)  Heylyn  v.  Heylyn,  Cowp.  132.  Gibson    v.    Montfort,    1    Ves.    493. 

Rolls.  Abr.  618.     Beckford  v.  Parne-  Barnes  v.  Crowe,  1  Ves.  jun.  497.  S. 

cott,    Cro.   Eliz.   493.     Countess    of  C.  4  Bro.  C.  C.  9.     Vid.also  Coppia 

Strathmorev.  Bowes,  7 Term  Rep.  482.  v.  Fernyhongh,  2  Bro.  C.  C.  296. 

(2)  Rowley  v.  Eyton,  2  Meri.  Rep.  (V/)    Attorney-General    v.    Baines, 

128.  Prec.  Ch.  270. 


(1)  In  Pennsylvania,  by  the  10th  sect,  of  the  act  of  April  8,  ISSS,  concerning  "  last  wills 
and  testaments,"  (Pamph.  Laws,  250,)  "the  real  estate  acciuii-ed  hy  a  testator  after 
making  his  will,  shall  pass  by  a  general  devise,  unless  contrary  intention  be  manifest  on  the 
face  of  the  will." 

(2)  KendaWs  Ex.  v.  Kendall,  3  Miinf.  Rep.  272. 


28  OF  WILLS  AND  CODICILS.  [bOOK  I. 

An  infant,  we  have  seen,  is  by  the  stat.  34  &  35  Hen.  8.  c.  5,  dis- 
abled from  devising  land;  but  if,  after  attaining  the  age  of  twenty- 
one  years,  he  re-execute,  pursuant  to  the  statute,  a  will  of  lands  made 
by  him  before,  it  shall  be.  effectual (e). 

A  will  of  personal  estate  may  be  expressly  republished  by  a  codi- 
cil, or  other  writing,  authenticated  in  the  same  manner  as  a  will  of 
such  property;  or  by  a  codicil,  or  such  other  writing,  from  the  con- 
tents of  which  such  an  intention  may  be  fairly  inferred;  or  merely 
by  annexing  a  codicil,  or  other  writing  to  such  will(y),  wdiether  it 
expressly  refer  to  the  will  or  not;  or  such  will  may  be  revived  by 
the  mere  parol  declarations  of  the  testator(«-).(l) 

In  a  case  where  copyhold  and  personal  estates  were  given  by  will, 
and  so  much  of  the  will  was  revoked  by  an  interlineation,  and  a 
codicil  to  the  same  effect,  and  the  codicil  was  afterwards  cancelled; 
it  was  held  that  the  cancelling  the  codicil  was  effectual  to  set  up  the 
original  will,  notwithstanding  the  interlineation  was  left  in  the  will, 
upon  the  evidence  of  intention(A). 

The  statutes  of  the  32d  &  34th  of  Hen.  S.  give  the  power  of  de- 
vising to  all  having  estates  in  fee-simple,  except  in  joint-tenancy(z), 
(2)  over  the  whole  of  their  socage  lands.  Persons  seised  [29]  in  fee- 
simple  in  coparcenary,  or  in  common,  in  reversion,  or  remainder, 
are  expressly  comprised  by  the  last-mentioned  statute(Ar). 

Copyhold  lands  arc  not  within  these  statutes,  smce  they  require 
that  the  tenure  should  be  socage,  which  copyholds  are  not(/);  but 
they  are  devisable  by  an  application  of  the  doctrine  of  uses  as 
above  stated(w). 

(e)  Herbert  v.Torball,  1  Sid.  1G2.  (/i)  Uttersonv.  Utterson,  3  Ves.  & 

(  /)   Coppin  V.  Fernyhough,  2  Bro.  I3ea.  123. 
C.  t.  291.  (/)  Swift  V.  Roberts,  Ambl.  C17. 

{g)  Off.  Ex.  25.     Beckford  v.  Par-         (A)  Sect.  4.  and  7. 
necott,  Cro.  Eliz.  493,  and  Vid.  Ab-  (/)  Harg.  Co.  Lit.' Ill  b.  note  1. 

neyv.  Miller,  2  Atk.  599.  (;«)  Supr.  6. 


(1)  In  Pennsylvania  a  will  of  lands  may  be  republished  by  parol.  Havard  v.  Davis,  3 
BJnn.  406. 

(2)  In  Pennsylvania,  by  tlie  aet  of  31st  March  1812,  "if  partition  be  not  made  be- 
tween joint  tenants,  whether  they  be  such  as  might  have  been  compelled  to  make  partition 
or  not,  or  of  whatever  kind  tlie  estate  or  thing  h'olden  or  possessed  be,  the  parts  of  those 
who  die  first  shall  not  acwue  to  tlie  survivors,  but  shall  descend  or  pass  by  devise,  and 
shall  be  subject  to  debts,  charges,  curtesy,  or  dower,  or  Iransmissible  to  executors  or  ad- 
ministrators, and  be  considered  to  eveiy  other  intent  and  purpose  in  the  same  manner  as 
if  such  deceased  joint  tenants  had  been  tenants  in  common.  Provided  always,  tliat  nothing 
in  this  act  shall  be  taken  to  affect  any  trust  estate."    (Purd.  Dig.  388.     5  Sm.  Laws,  395.) 


30 


CHAP.  II.]  OF  APPOINTING  EXECUTORS. 


CHAP.    II. 


OP    THE    APPOINTMENT    OF    EXECUTORS. 

Sect.  I. 
PVho  may  be  an  executor — who  not — how  he  may  he  ajtpointed. 

An  executor  is  he  to  whom  the  execution  of  a  last  will  and  tes- 
tament of  personal  estate  is  by  the  testator's  appointment  confided(a). 
In  general,  all  persons  are  capable  of  sustaining  this  character;  but 
there  are  some  exceptions,  which  I  shall  presently  mention. 

The  king,  it  seems,  may  be  appointed  an  executor,  but  in  that 
case,  as  he  is  presumed  to  be  so  engaged  in  public  affairs  as  to  have 
no  leisure  to  attend  to  the  private  concerns  of  individuals,  he  has  a 
right  to  nominate  persons  to  execute  the  trust  for  him,  as  well  as  au- 
ditors to  whom  such  nominees  shall  account(6). 

It  was  formerly  a  doubt,  whether  corporations  aggregate  could  [31] 
be  constituted  executors,  inasmuch  as  they  cannot  take  an  oath  for 
the  due  execution  of  the  office(c);  but  it  now  seems  settled  in  the  af- 
firmative(rf),  and  that,  on  their  being  so  named,  they  may  appoint 
persons,  styled  syndics,  to  receive  administration  with  the  will  an- 
nexed, who  are  sworn  like  all  other  administrators(e).  Such  corpo- 
rations as  can  take  the  oath  of  an  executor  are  clearly  competent(/'). 
An  infant  may  be  appointed  an  executor(^),  and  even  a  child  in 
ventre  sa  mere;{\)  and  then  if  the  mother  be  delivered  of  two  or 
more  children  at  the  birth,  they  shall  all  be  entitled(A).  But  an  in- 
fant, although  appointed,  is  by  stat.  38  Geo.  3.  c.  87.  s.  6,  disquali- 
fied from  acting  in  the  executorship  till  he  attains  the  full  age  of 
twenty-one  years,  and  an  administrator  is  substituted  to  act  for  him 
in  the  interval.  Before  the  passing  of  this  act,  the  law  deemed  him 
capable  of  executing  the  trust  at  the  age  of  seventeen(^). 

A  feme  covert  is   also  capable  of  the  office  of  an  executrix,  but 

{a)  Off.  Ex.  2.     2  Bl.  Com.  503.  (e)  I  Bl."Coin.28.  n.    2Bac.Abr.  5. 

Farrington  v.  Knightly,   I  P.  Wms.  (/)  Godolph.  85.     3  Bac.  Abr.  5. 

548.  553.  576.  {i^)  Off.  Ex.  21 1.     3  Bac.  Abr.  8. 

(h)  3  Bac.  Abr.  5.      11  Vin.  Abr.  2  Bl.  Com.  503. 

54.     4  Inst.  335.  {h)  Godolph.  102.     3  Bac.  Abr.  8. 

(c)  Off.  Ex.  17.     1  Bl.  Com.  477.  (0  Off.  Ex.  214.     11  Vin.  Abr.  99. 

Id)  1  Roll.  Abr.  915.     Swinb.  5.  s.  5  Co.  29. 
1.  3  Bac.  Abr.  5.    11  Vin.  Abr.  140. 

(1 )  Per  Dnncun, .].     Sinfl  v.  IhiffiM,  ^  Sci-g.  &  Ua\vlu,4(J. 


32  OF  APPOINTING  EXECUTORS.  [bOOK  I. 

[32]  not  without  the  consent  and  concurrence  of  her  husbancl(^-);  and. 
although  slie  be  an  infant,  if  her  husband  be  of  age  and  assent,  he  shall 
have  the  execution  of  the  will(/). 

An  alien  friend  may  be  an  cxecutor(wi),  and  so  also  may  an  alien 
enemy,  who  came  here  with  a  safe-conduct,  or  is  commorant  here  by 
the  king's  licence,  and  under  his  protection,  although  he  came  with- 
out a  safe-conduct(?i).  Neither  outlawry  nor  attainder  incapacitates 
a  party,  for  he  acts  in  auter  droit,  and  for  the  benefit  of  the  deceas- 
ed(o).  Nor  had  villeinage,  during  its  existence  in  this  country,  that 
efrect(7;). 

Nor  is  poverty,  nor  even  insolvency,  a  disqualification  of  him  in 
whom  the  testator  has  chosen  to  repose  so  greata  conlidence(5').(l) 

{k)  3  Bac.Abr.  9.    Off.  Ex.  203.  2  (p)  Swinb.  5.  s.  1,     3  Bac.  Abr. 

Bl.  Com.  503.     Sed  vide  1  Fonbl.  86.  5.   Roll.  Abr.  915.    11  Vin.  Abr.  141. 

(/)  Off.  Ex.  215.  (r/)  3  Bac.  Abr.  7.     Hill  v.  Mills, 

{m)  Off.  Ex.  15.     3  Bac.  Abr.  G.  Salk.  3C,     Rex  v.  Raines,  Lord  Raym. 

{n)  1  Bac.  Abr.  5.  137.      Co.  Litf.  361.  ,S.  C.  Salk.  299.     11  Vin.  Abr. 

129  b.     Wells  V.  Williams,  Salk.  46.  143.      Walker  v.   Woolaston,  2   P. 

pi.  1.  Ld.  Raym.  282.  S.  C.Lutw.34.  Wms.  582.     3  P.  Wms.  388,  note  b. 

(o)  Off.  Ex.  16.     3  Bac.  Abr.  5  Co.  Anon.  12  Ves.  jun.  4. 
Litt.  128. 


(1)  Higgimonw  Fabre''s  Ex.,  3  Desaus.  Rep.  93,  94.  By  the  22d  section  of  the  act  of 
29th  March  1832,  "relating  to  Orplian's  Courts,"  (Pamph.  Laws,  195,)  "whenever  it 
shall  be  made  to  appear  to  tho  Orphan's  Court  having  jiu'isdiction  of  the  accounts  of  any 
executor,  administrator,  or  guardian,  or  to  any  Judge  thereof  when  such  Court  shall  not 
be  in  any  session,  that  such  executor,  administrator,  or  guardian  is  wasting  or  mismana- 
ging the  estate  or  property  under  his  charge,  or  islikely  to  prove  insolvent,  or  has  neglected 
or  refused  to  exhibit  true  and  perfect  inventories,  or  render  full  and  just  accounts  of  such 
estate  or  property  come  to  his  bauds  or  knowledge,  tlien,and  in  every  such  case,  it  shall 
he  lawful  for  such  Court,  or  for  such  Judge  tlicreof,  to  issue  a  citation  to  such  executor,  ad- 
ministrator, or  guardian,  requiring  him  to  appear,  on  a  day  certain,  before  an  Orphan's 
Court,  to  be  convened  for  such  purpose,  if  the  said  Court  shall  not  tlien  be  in  session,  and 
the  case  shall  require  despatch;  and  upon  the  return  of  such  citation,  tlie  said  Court  may 
require  such  security  of  such  executor,  or  such  other  and  further  security  of  such  adminis- 
trator or  guardian  astliey  may  think  reasonable,  conditioned  for  the  performance  of  their 
respective  trusts,  which  security  shall  betaken  in  the  name  of  the  Commonwealth  of  Penn- 
sylvania, and  filed  in  the  said  Orphan's  Court,  and  shall  be  deemed  and  considered  in 
trust  for  the  benefit  of  persons  interested  in  such  estate  ;  Provided,  that  if,  in  the  cases 
above  mentioned,  it  shall  be  made  to  appear  to  the  said  Court,  oi-  any  Judge  thereof,  on 
oatli  or  affirmation  as  aforesaid,  that  such  executor,  administrator,  or  guardian,  is  about  to 
remove  from  this  commonwealth,  or  that  the  property  under  his  charge  may  be  wasted  or 
materially  injured  before  he  can  be  reached  by  tlie  ordinary  process  of  tlie  Court,  it  shall 
be  lawful  for  such  Court  or  such  Judge  thereof,  to  issue  a  writ  of  attachment,  under  which 
the  same  proceedings  may  take  place  as  in  otlier  cases  of  attachment  on  mesne  process  in 
the  Orphan's  Court;  and  on  tlic  return  of  such  attachment,  tlie  Court  may  proceed  as  on 
the  return  to  the  citation  above  mentioned." 

By  the  23d  section  of  the  same  act,  "  if  any  executor,  administrator,  8cc.  shall  ne- 
glect or  refuse  to  give  such  seciu-ity,  or  such  further  security  so.  ordered,  then  the  said 
Court  shall  vacate  such  letters  testamentary  or  of  administration,  and  award  new  letters, 
&c.» 

By  the  25th  section  of  the  same  act,  (Pamph.  Laws,  lOfi.)  «  whenever  it  shall  be  made 


CHAP.  II.]  OF  APPOINTING  EXECUTORS.  32 

A  disability,  however,  may  arise  in  various  modes,  either  from 
the  party's  being  guilty  of  certain  offences  against  the  established  re- 
ligion, or  from  his  being  the  subject  of  an  enemy's  country,  and  re- 
sident within,  or  resident  here  without  the  king's  licence;  or,  under 
certain  circumstances,  from  going  or  residing  abroad;  or  from  a  de- 
fect of  understanding. 

[33]  A  person  excommunicated  is  suspended  from  acting  till  ab- 
solution(r).  By  stat.  3  Jac.  1.  c.  5.  s.  22,  a  popish  recusant,  convicted 
at  the  time  of  the  testator's  death,  is  altogether  incompetent(5). 

By  stat.  3  Car.  1.  c.  2.  s,  1,  if  any  person  send  another  abroad  to 
be  educated  in  the  popish  religion,  or  to  reside  in  any  religious  house 
abroad  for  that  purpose,  or  contribute  to  his  maintenance  when  there, 
both  the  sender,  the  sent,  and  the  contributor,  are  subject  to  the 
sarne  disability.  But  by  virtue  of  the  stat.  31  Geo.  3.  c.  32,  Roman 
Catholics  who  shall  make,  take,  and  subscribe  the  declaration  of 
their  religious  profession,  and  the  oath  of  allegiance  and  abjuration 
as  appointed  by  that  act,  shall  be  exempt  from  this  as  well  as  other 
disabilities. 

By  stat.  9  &  10  W.  3.  c.  32,  persons  denying  the  Trinity,  or  as- 
serting that  there  are  more  gods  than  one,  or  denying  the  Christian 
religion  to  be  true,  or  the  Holy  Scriptui;es  to  be  of  divine  authority, 
shall  for  the  second  offence,  among  other  incapacities,  be  disabled 
from  being  executors. 

Also  by  the  statutes  prescribing  the  qualifications  for  offices(^)  [34] 
persons  not  having  taken  the  oaths  and  complied  with  the  other  re- 
quisites for  qualifying,  who  shall  execute  their  respective  offices  after 
the  time,  limited  for  the  performance  of  those  acts,  shall  incur  the 
same  incapacity.  •    . 

Alienage  with  relation  to  a  hostile  country,  accompanied  with  resi- 

(r)  Off.  Ex.  17.  107.     3  Bac.  Abr.  Car.  2.  s.  2.  c.^1. 
6.    2  Bum's  Eccl.  Law,  222.  (0  Stat.  25  Car.  2.  c.  2.     1  Geo. 

(s)  Hill  V.  Mills,  1  Show.  293.    11  1.  stat.  2.  c.  13.     Vide  also  13  W.  3. 

Vin.  Abr.  142.  144.     See  4  Bl.  Com.  c.  6.  s.  6. 
56.  and  stat.  3  Jac.  1.  c.  5.  s.  10,  and  30 


to  appear,  to  the  satisfactioaof  the  Orphan's  Court  liavint^  jurisdiction  as  aforesaid,  or  of 
any  Judge  thereof,  that  an  executrix,  having  minors  of  her  own,  or  being  concerned  for 
others,  is  married,  or  like  to  be  espoused  to  another  husband  without  securing  the  minor's 
portions,  or  real  estates,  it  shall  be  lawful  for  sucli  Court,  or  for  sucli  J  iidge  thereof,  to  issue 
a  citation  to  such  executrix.  Or  if  she  shall  have  been  married  to  another  husband,  then  to 
her  and  such  husband,  recjuiriiig  her  or  them,  as  the  case  may  be,  to  appear  on  a  day  cer- 
tain, before  an  Orphan's  Court,  to  be  convened  for  such  purpose,  if  the  said  Court  shall 
not  then  be  in  session,  as  is  hereinbefore  provided  in  tlie  case  of  deliiKjucnt  executors, 
administi-ators,  or  guardians,  and  on  the  return  of  s»ich  citation  the  Court  may  require 
such  security  to  be  given  by  such  executrix,  or  by  her  lmsband,if  she  shall  have  been  mar- 
ried again,  as  the  circumsUuiccs  of  tlie  case  may  rctpiire;  aiid  if  siuli  executrix,  or  her 
husband,  shall  fail  or  refuse  to  give  such- security,  it  .shall  be  lawful  for  said  Court  to 
vacate  tlie  letters  testamentary,  and  to  award  new  letters,  to  be  granted  by  the  Register 
liaving  jurisdiction,  on  such  security  as  tliey  may  lliink  proper." 


34  OF  APPOINTING  EXECUTORS.  [bOOK  I. 

denccal)road(l),  or  residence  here  without  theking's  permission, either 
express  or  implied,  is  to  he  classed  as  a  species  of  disability;  for  al- 
though the  cases  in  respect  to  the  incapacity  of  alien  enemies  are  not 
entirely  uniform (?/),  yet  this  principle  of  exclusion,  thus  modified, 
seems  clearly  to  exist(^>). 

By  stat.  5  Geo.  1.  c.  27,  British  artificers  going  out  df  the  realm 
to  exercise  or  teach  their  trades  abroad,  or  exercising  their  trades  in 
foreign  parts,  who  shall  not  return  within  six  months  next  after  due 
warning  given  tliem,  shall  be  deemed  aliens  out  of  his  majesty's  pro- 
tection, and  are  expressly  disqualified  for  executors. 

Idiots,  and  those  \\\\o  are  visited  with  insanity,  or  whose  intellects 
arc  destroyed  by  age,  disease,  or  intemperance;  such  persons  as, 
having  been  born  blind  and  deaf,  have  always  wanted  the  common 
inlets  of  knowledge,  are  all  necessarily  incapable  of  the  oirice(t^;).(^) 

[35]  The  authority  of  an  executor,  as  appears  by  the  definition,  is 
grounded  on  the  will,  and  may  be  either  express  or  implied;  abso7 
lute  or  qualified;  exclusive  or  in  common  with  others. 

He  may  be  expressly  nominated,  either  by  a  written,  or  by  a  nun- 
cupative will(a:). 

He  may  be  constructively  appointed  merely  by  the  testator's  re- 
commending or  committing  to  him  the  charge  of  those  duties,  which 
it  is  the  province  of  an  executor  to  perform,  or  by  conferring  on  him 
those  rights  which  properly  belong  to  the  oiBce,  or  by  any  other 
means  from  which  the  testator's  intention  to  invest  him  with  that 
character  may  be  distinctly  inferred.  As  if  a  will  direct  that  A.  shall 
have  the  testator's  personal  property  after  his  death,  and,  after  pay- 
ing his  debts,  shall  dispose  of  it  at  his  own  pleasure;  or  declare  that 
A.  shall  have  the  administration  of  the  testator's  goods;  this  alone 
constitutes  A.  an  executor  according  to  the  tenor.  So,  where  the 
testator,  after  giving  various  legacies,  appointed  that,  his  debts  and 
legacies  being  paid,  his  wife  should  have  the  residue  of  his  goods,  on 
condition  that  she  gave  security  for  the  performance  of  his  will;  this 
was  held  to  be  sufficient  to  make  her  executrix.  And  so  where  an  in- 
fant was  nominated  executor,  and  A.  and  B.  overseers,  with  this  di- 

(u)  3   Bac.   Abr.  6.     1  Bac.  Abr.  (i-)  Wells  v.  Williams,  Lord  Raym. 

5.    Brocks  V.  Phillips,  Cro.  Eliz.  684.  282.     Openheimerv.Levy,Stra.  1082. 

Watford    v.    Masham,     Moore    431.  Brandon  v.  Nesbett,  6  Term.  Rep.  23. 

Richfield  V.    Udall,   Carter,  49.  191.  Bristow  v.  Towers,  ib.  35. 

Villa  V.  Dimock,  Skinner,  370.     Mol-  {w)  3  Bac.  Abr.  7. 

lay,  lib.  3.  c.  2.  s.  10.     Off.  Ex.  15.  {x)  Off.  Ex.  7.     3   Bac.  Abr.  28. 

Anon.  Cro.  Eliz.  142.  11  Vin.  Abr.  136. 


'(1)  In  Pennsylvania,  an  executor  or  admhiistratoi-  "  who  shall  have  removed  from  tlie 
state,  or  shall  have  ceased  to  have  any  known  place  of  residence  therein  during  tlie  period 
of  a  year  or  more,"  may  be  removed  by  the  Orphan's  Court,  on  the  application  of  any 
person  interested.     Act  of  29th  March  1S32,  sect.  27.     (Pamph.  Laws,  197.) 

(2)  The  Orphan's  Courts  in  Pennsylvania  have  power  to  remove  an  executor  or  admin- 
istrator who  shall  have  been  duly  declared  a  lunatic  or  habitual  drunkard,  and  to  award 
new  letters,     .let  of  29th  March  1 832,  sect.  26.     ( Pamph.  Laws,  1 96. ) 


CHAP.  11.]       OP  AN  EXECUTOR  DB  SON  TORT.  3o 

rection,  that  they  should  have  the  controul  and  disposition  of  the  tes- 
tator's effects,  [36]  and  should  pay  and  receive  debts  till  the  infant 
came  of  age,  they  were  held  to  be  executors  in  the  mean  time(y).(l) 

His  appointment  may  be  either  absolute  or  qualified.  It  is  abso- 
lute when  he  is  constituted  certainly,  immediately,  and  without  any 
restriction  in  regard  to  the  testator's  effects,  or  limitation  in  point  of 
time.  It  may  be  qualified,  as  where  A.  is  appointed  to  be  executor 
at. a  given  period  after  the  testator's  death;  or  where  he  is  appointed 
executor  on  his  coming  of  age,  or  during  the  absence  of  J.  S.;  or 
where  A.  and  B.  are  made  executors,  and  B.  is  restricted  from  act- 
ing during  A.'s  life;  or- where  A.  and  B.are  named  executors,  and 
if  they  will  not  accept  the  office,  then  C.  and  D.  are  substituted  in 
their  room;  or  where  A.  is  appointed  executor  on  condition  that  he 
gives  security  to  pay  legacies,  or  generally  to  perform  the  will.  So 
a  testator  may  make  A.  an  executor  in  respect  to  his  plate  and  house- 
hold goods,  B.  in  respect  of  his  cattle,  C.'as  to  his  leases,  and  D.  in 
regard  to  his  debts;  or  appoint  A.  an  executor  for  his  effects  in  one 
county,  and  B.  executor  for  his  effects  in  another;  or  (which  seems 
more  rational  and  expedient)  he  may  so  divide  the  duty  where  his 
property  is  in  va[37]rious  countries.  So  he  may  nominate  his  wife 
executrix  during  the  minority  of  his  son,  or  so  long  as  she  continues 
a  widow(z). 

Lastly,  an  executor  may  be  appointed  solely,  or  in  conjunction 
with  others:  but,  in  the  latter  case,  they  are  all  considered  by  the 
law  in  the  light  of  an  individual  person(«). 


Sect.  II. 
Of  an  executor  de  son  tort — how  a  jmrty  becomes  so. 

Having  thus  treated  of  executors  regularly  constituted,  I  proceed 
now  to  the  consideration  of  another  species  of  them,  who  derive  no 
authority  from  the  testator,  but  who  assume  the  office  by  their  own 
intrusion  and  interference.  Such  an  one  is  styled  an  executor  de 
son  tort,  or  an  executor  of  his  own  wrong(6). 

Various  are  the  acts  which  constitute  an  executor  of  this  descrip- 
tion(c),  such  as  his  taking  possession  of,  and  converting  the  assets  to 

(y)  2  Bl.  Com.  503.     Off.  Ex.  8,  9.  Carte  v.  Carte,  3  Atk.  180.     Clictham 

3   Bac.  Abr.  27.     11   Vin.  Abr.   130.  v.  Lord  Audley,  4  Vcs.  jun.  72. 

Ciodolph.  83.  Com.  Dig.  Administra-  («)  3  Bac.  Abr.  30.     01!.  Ex.  95. 

tion  (B.)  Cro.    Eliz.   48.     Pickering  {b)  Off.  Ex.  172.     3  Bac.  Abr.  20. 

V.  Towers,  Ambl.  3G4.     Swinb.  p.  4.  Swinb.  6.  s.  22.  No.  2.     2  Bl.  Com. 

s.  4.  507.     11  Vin.  Abr.  210.       • 

(z)    Off.   Ex.  10.  12.     3  Bac.  Abrl  (c)  3  Bac.  Abr.  21.     11  Vin.  Abr. 

28.  30.     11  Vin.  Abr.  130,  138,   139.  205. 


(I)  //I  thcgoock  of  II.  S.  Fvij,  1  liiigK-  lii'P-  ^^- 


37  OF  AN  EXECUTOR  DE  SON  TORT.  [bOOK  1. 

his  own  use(d);  livino;  in  the  house,  and  carrying  on  the  trade  of 
the  dcccased(c);  paying  the  deceased's  mortgages,  or' [38]  other 
debts(l)  or  legacies  out  of  them;  suing  for,  receiving,  or  releasing 
the  debts  ckie  to  the  estate{/);  seizing  a  specific  legacy  without  the 
assent  of  the  lawful  executor(,^'-);(2)  entering  on  a  lease  or  term  for 
years(/i),  or  an  estate  pur  autre  vie{i),  (which  is  made  assets  by 
stat.  29.  Car.  2.  c.  3.)  especially  if  he  enter  in  right  of  the  deceased, 
and  do  acts  on  the  land,  which  belong  to  the  office  of  an  executor; 
as  turning  the  cattle  upon  it;  delivering  to  the  widow  more  apparel 
than  is  suitable  to  her  rank(^);  answering  in  the  character  of  ah  ex- 
ecutor to  any  action  brought  against  him,  or  pleading  any  other  plea 
than  ne  nnqiies  executor(/).  And  all  other  acts  of  a  similar  nature, 
however  slight(???),  may  have  the  same  consequence,  as  in  one  case, 
merely  taking  a  bible,  and  in  another  a  bedstead(?i),  were  held  suffi- 
cient, inasmuch  as  they  are  the  indicia  of  the  person  so  interfering 
being  the  representative  of  the  deceased.  So  if  J.  S.  be  appointed 
by  the  ordinary  to  collect  the  efi'ects,  and  he  exceed  his  authority, 
and  sell  any  of  them,  even  such  as  are  perishable(o),  or  if  he  had  the 
express  direction  of  the  ordinary  for  such  sale,  the  same  being  ille- 
gal, he  becomes  an  executor  de  son  tort{  p). 

[39]  So  where  A.  the  servant  of  B.  sold  goods  of  C,  an  intestate, 
both  before  and  after  C.'s  death,  in  consequence  of  orders  given  by 
him  in  his  lifetime,  and  paid  tlie  money  arising  from  such  sale  into 
the  hands  of  B.;  and  D.  had  also,  in  the  capacity  of  a  servant,  sold 
other  goods  of  the  intestate;  on  an  action  brought  against  B.  and  D. 
as  executors,  for  a  debt  due  from  the  deceased,  they,  not  having  dis- 
charged themselves  by  payment  of  the  money  which  they  had  re- 
spectively received  to  the  rightful  administrator  at  the  time  when  the 
action  was  commenced,  or  even  when  they  pleaded,  were  both  ad- 
judged liable  as  executors  of  their  own  wrong(y). 

So  where  a  creditor  took  an  absolute  bill  of  sale  of  the  goods  of 
the  debtor,  but  agreed  to  leave  them  in  his  possession  for  a  limited 

{d)  5  Co.  33  b.     Off.  Ex.  172.    11  (Jc)  Off.  Ex.  175. 

Vin.  Abr.  210,  211.  (/)  3  J3ac.  Abr.  21.     Godolph.  92. 

(e)  Hooper  v.  Summerset,  1  Wight-  (m)  Padget  v.  Priest,  2  Terra  Rep. 

wick,  16.  100.     Stokes  v.  Porter,  Dyer,  166  b. 

(/)  Swinb.  6.  s.  22.  No.  2.    Fleice  11  Vin.  Abr.  212. 

V.    Southcot,  Dyer,   105.     Roll.  Abr.  (n)  3  Bac.  Abr.  24.     Noy.  69. 

918.  (o)  Off.  Ex.  174. 

(g)  3  Bac.  Abr.  21.     Godolph.  91.  (p)  Off.  Ex.  175.      11   Vin.   Abr. 

(A)  Swinb.  6.  s.  22.  No  2.     3  Bac.  209. 

Abr.  22.  {q)  Padget  v.  Priest  et  al.,  2  Term 

(/)  Carth.  166.  Rep.  97. 


(1)  HoiveWs  Adm.y.  Smith,2  M'Cord's  Rep.  51G.  See  Stocktoji\.  lVilson,3  Penns. 
Rep.  129. 

(2)  Or  by  buying  at  sheriff's  sale  goods  of  the  intestate,  sold  under  an  execution  issued 
upon  a  judgment  fraudulenUy  confessed  to  him  by  the  intestate,  with  the  view  to  defeat 
creditors.     Osborne  v.  Jlloss,  7  Johns.  Rep.  161. 


CHAP.  II.]       OF  AN  EXECUTOR  DE  SON  TORT.  39 

time,  before  the  expiration  of  which  the  debtor  died,  and  the  cre- 
ditor took  and  sold  the  goods;  he  was  held  liable  to  the  extent  of 
their  value,  as  executor  de  son  tort,  for  the  debts  of  the  deceased 

W-(l) 

So  by  stat,  43  Eliz.  c.  8,  if  administration  by  fraud  be  granted  to 
an  insolvent  person,  who  gives  any  of  the  effects  to  A.,  or  releases  a 
debt  due  from  him  to  the  intestate.  A.,  for  so  much,  shall  be  executor 
de  son  tort(s). 

[40]  But  there  are  many  acts  which  a  stranger  may  perform  with- 
out incurring  the  hazard  of  being  involved  in  such  an  executorship(/) ; 
such  as  locking  up  the  goods ;(2)  directing  the  funeral  in  a  manner 
suitable  to  the  estate  which  is  left,  and  defrajj-ing  the  expenses  of  such 
funeral  himself,  or  out  of  the  deceased's  eirects( ?.;) ;  making  an  inven- 
tory of  his  property ( r;) ;  advancing  money  to  pay  his  debts  or  lega- 
cies(iv);  feeding  his  cattle;  repairing  his  houses;  providing  neces- 
saries for  his  children(a?);  for  these  are  offices  merely  of  kindness 
and  charit}^. 

And  although,  as  I  have  stated,  a  party  may  be  executor  de  son 
tort  of  a  term  actually  existing,  and  in  that  case  cannot  enlarge  his 
estate  by  claiming  in  fee,  yet  if  he  enter  generally  on  lands,  of  which 
there  is  no  term  in  being,  he  cannot  qualify  his  wrong  by  expressly 
claiming  only  a  particular  estate,  but  must  be  a  disseisor  in  fee,  and 
not  an  executor  de  son  tort{y).{o)  Nor  can  there,  generally  speak- 
ing, be  such  an  executor,  when  there  is  a  rightful  executor,  or  where 
administration  has  been  duly  granted;  for,  if  after  probate  of  the 
will  or  administration  granted,  a  stranger  take  possession  of  the  pro- 

(r)    Edwards   v.  Harben,   2   Term  216. 
Rep.  587.  {v)  Swinb.  ibid. 

(s)  Vin.  Off.  Ex.  182,  183.  {w)  3  Bac.  Abr.  22.     Godolph.  92. 

{t)  3  Bac.  Abr.  22.     Godolph,  93,         {x)  Swinb.  ibid. 
94.  ly)  3  Bac.  Abr.  23,  24.     Mayor  of 

(u)  Off.  Ex.  174.      Swinb.  6,  s.  22.  Norwich  v.  Johnson,  3  Lev.  35.    S.  C. 

No.  2.    2  Bl.  Com.  507.     11  Vin.  Abr.  3  Mod.  90,  and  2  Show.  457. 
207.     Harrison  v.  Rowley,  4  Ves.  jun. 


(1)  Horsey  v.  Sinithson,  6  Ilarr.  k  Johns,  61.  See,  however.  King  v.  Li/mmi,!  Root. 
Rep.  104,  where  it  was  held  that  intermeddling  with  the  goods  of  a  deceased  person,  held 
by  a  bill  of  sale  from  the  decedent,  although  it  be  fraudulent,  will  not  make  a  man  an 
executor  de  son  tort.  Wliere  a  person  drew  an  order  iipon  his  agent,  who  was  in  possess- 
ion of  property  for  the  purpose  of  selling,  upon  whicii  the  agent  himself  had  a  lien,  and 
the  order  was  accepted,  and  the  drawer  then  died,  tlie  Court  held,  that  such  order  was 
essentially  an  assignment  for  valuable  consideration,  and  that  the  agcMit  might  sell  the 
property,  retain  his  debt,,  and  pay  the  order,  without  making  himself  responsible  as  ex- 
ecutor de  son  tort.  De  Jiesse  v.  JSTapiev  et  al.,  Exrs,  1  M'Cord's  Rep.  107;  by  tliree 
judges  against  two. 

(2)  Glmn  v.  Smith,  2  Gill  k  Johns.  494. 

(3)  No  intermeddling  with  the  lands  of  the  deceased  will  charge  a  person  as  executor 
de  son  tort,  it  being  merely  a  wrong  done  to  the  heir  or  devisee.  Mitclicl  v.  Ijiint,  4 
Mass.  Rep.  O.'iiO.  Nor  can  lands  of  an  intestate  be  sold  under  a  Judgment  ohtaincd  against 
an  executor  d<:  son  tori.    JVIilclwt  v.  Jji/ul,  jYass  v.  VnvH-wrarivgm,  7  Serg.  k  Rawlc,  1"J2. 


40  OF  THE  RENUNCIATION    OR  [bOOK  1. 

perty,  he  may  be  sued  as  a  Irospnssor  by  the  executor  or  administra- 
tor; "but  it  is  otherwise  if,  after  taking  such  [41]  possession,  he  claim 
to  be  executor,  pay  or  receive  debts,  or  pay  legacies,  or  otherwise 
intermeddle  in  that  character(z) ;  for  in  all  those  cases  he  becomes 
an  executor  of  his  own  wrong. 

Whether  a  man  has  made  himself  such  an  executor,  is  a  question 
not  to  be  left  to  a  jnry,  but  is  a  conclusion  of  law  resulting  from  the 
facts  established  in  evidcncc(«). 


•Sect.  III. 
Of  the  renunciation  or  acceptance  of  an  executorship. 

An  executor  may,  if  he  please,  decline  to  act,  biit  he  has  no  power 
to  assign  the  office(Z>).  On  liis  being  cited  by  the  ordinary,  pursuant 
to  Stat.  21  H.  8.  c.  5,  to  come  in  and  prove  the  will,  if  he  neglect  to 
appear,  he  is  punishable  by  excommunication  for  a  contempt(c).  If 
he  appear,  either  on  citation,  or  voluntarily,  and  pray  time  to 
consider  whether  he  will  act  or  not,  the  ordinary  may,  though  the 
practice  seems  now  obsolete,  grant  letters  ad  colligendum  in  the 
interim(f/):  If  he  refuse,  he  cannot  be  compelled  to  [42]  accept  the 
executorship,  and  his  renunciation  is  entered  and  recorded  in  the  spir- 
itual court  before  the  ordinary.  A  refusal,  by  any  act  in  pais,  as  a 
mere  verbal  declaration  to  that  effect,  is  not  sufficient;  but,  to  give 
it  validity,  it  must  be  thus  solemnly  entered  and  recorded,  and  then 
administration  with  the  will  annexed  will  be  granted  to  another(e). 

If  the  executor  refuse  to  take  the  usual  oath,  or,  being  a  quaker,  to 
make  the  affirmation,  this  amounts  to  a  refusal  of  the  office,  and  shall 
be  so  recoi'ded(y ). 

In  case  the  ordinary  himself  is  nominated  executor,  he  may  re- 
nounce before  the  commissary(o-). 

If  a  party  renounce  in  person,  he  takes  an  oath  that  he  has  not  in- 
termeddled in  the  effects  of  the  deceased,  and  will  not  intermeddle 
therein  with  any  view  of  defrauding  the  creditors.  But  he  may  re- 
nounce by  proxy,  and  then  the  oath  is  dispensed  with. 

An  executor  cannot  in  part  refuse;  he  must  refuse  entirely,  or 
not  at  all(A.). 

After  such  refusal,  and  administrations  granted,  the  party  is  inca- 
pable  of    assuming    the    executorship(/)    during    the   lifetime    of 

(2)   3  Bac.  Abr.  22.     5  Co.  33  b.  198.    Swinb.  C.  s.  12.   Roll.  Abr.  907. 

Anon.  Salk.313.pl.  19.    ll.Vin.  Abr.  (/)  4  Burn.  Eccl.  L.  213.     Rex  v. 

212.  Raines,  Ltl.  Rayra.  363. 

(a)  Padget  v.  Priest,  2  T.  Rep.  99.  (g)  Ibid.  38. 

(6)  3  Bac.  Abr.  42.  (A)  H  Vin.  Abr.  1.39.  Anon.  Brownl. 

(c)  Off.  Ex.  37.     Vid.  infr.  82.     Fooler  v.  Cooke,  1  Salk.  297. 

Id)  Broker  v.  Charter,  Cro.  Eliz.  92.  (/)  Swinb.  6.  s.  12.     3  Bac.  Abr.  42, 

(e)  Off  Ex.  38.     4  Burn.  Eccl.  L.  43.     Off.  Ex.  .39. 


CHAP.  II.]     ACCEPTANCE  ON  AN  EXECUTORSHIP.  43 

[43]  such  administrator;  l)ut,  after  the  death  of  the  administrator,  the 
executor  may  retract  his  renunciation,  however  formally  made;  but  if 
administration  be  committed  in  consequence  merely  of  his  failure  to 
appear  on  the  above-mentioned  process,  he  has  a  right,  at  any  future 
time,  even  in  the  administrator's  lifetime,  to  come  in  and  prove  the 

will(i?:).  ^    , 

If  he  appear,  and  take  the  usual  oath  before  the  surrogate,  he  has 
made  his  election,  and  cannot  afterwards  divest  himself  of  the  office, 
but  may  be  compelled  to  perform  it(/). 

So,  if  he  once  administer,  he  is  absolutely  bound(77i);  and  by  stat. 
37  Geo.  3.  c.  90.  s.  10,  if  he  administer,  and  omit  to  take  probate 
within  six  months  after  the  death  of  the  deceased,  he  is  liable  to  the 
penalty  of  fifty  pounds(n). 

The  acts  which  amount  to  an  administration  are  all  such  as  indi- 
cate an  election  of  the  executorship(o),  and  within  this  class  all  such 
acts  as  constitute  an  executor  de  son  tort  are  of  course  comprehend- 
ed (;?).  Hence,  it  hath  been  adjudged,  that  if  he  take  the  [44]  goods 
of  a  stranger,  under  an  idea  that  they  belonged  to  the  testator,  and 
with  an  intent  to  administer  them,  this  act  is  sufficient  to  charge 
him ;  as  where  the  testator  was  tenant  at  will  of  certain  goods,  and  the 
executor  seized  them,  supposing  they  were  part  of  the  deceased's 
effects,  and  intending  to  administer  them,  this  was  held  to  be  an  elec- 
tion of  the  office(g).  (1 )  But  it  is  otherwise  if  theexecutor  take  the 
testator's  goods  on  a  claim  of  property  in  them  himself,  although  it 
afterwards  appear  that  he  had  no  right,  since  such  claim  is  expressive 
of  a  different  purpose  from  that  of  administering  as  executor(r).  So, 
if  an  executor  sequester  goods  in  the  character  of  a  commissary,  that 
is  no  assent  to  the  executorship (5). 

But  if  there  be  two  executors,  and  one  of  them  have  a  specific  lega- 
cy bequeathed  to  him,  and  take  possession  of  it  without  the  consent 
of  his  co-executor,  such  act  amounts  to  an  administration(^).  So, 
if  an  executor  have  refused  before  the  ordinary,  and  administration 
hath  been  granted,  if  it  appear  he  had  administered  before,  and  thus 
determined  his  election,  the  letters  of  administration  may  be  revoked, 
and  he  may  be  enforced  to  prove(?i). 

(k')  Off.  Ex.  ibid.  Com.  Dig.  Admon.  11  Vin.  Abr.  205. 

(B.  4.)  irifr.  (/?)  3  Bac.  Abr.  44.     Roll.  Abr.  917. 

(V)  Swiub.  6.  s.  12.     1  Ventr.  335.  Swinb.  p.  6.  s.  22. 

11  Vin.  Abr.  207.  (7)  Holl.  Abr.  917.  11  Vin.  Abr.  20G. 

(m)  4  Burn's  Eccl.  L.  198.     Swinb.  (r)  3  Bac.  Abr.  44.     Roll.  Abr.  917. 

6.   s.    12.      Wankford   v.   Wankford,  (s)  Roll.  Abr.   917.     U  Vin.  Abr. 

Salk.  301.  304.  307.  20G. 

(n)Vid.  infr.  (<)  Roll,  Abr.  917.    11  Vin.Abr.20G. 

(0)  3  Bac.  Abr.  44.    Roll.  Abr.  917.  (<0  ^^-  K-^-  -10. 


(1)  So  taking  possession  and  selling  part  of  the  personal  estate  of  the  testator,  and  pay- 
ing some  of  Ilia  debts,  arc  proof  of  election  to  act  as  executor,  and  render  a  person 
chargeable  as  such.     Van  Home  v.  Fonda,  5  Johns.  Cha.  Kep.  388. 


44  OF  EXECUTOR  BEFORE  PROBATE.        [bOOK  I. 

If  there  be  several  executors,  they  must  all  duly  renounce,  before 
the  administration  with  the  will  annexed  can  be  granted(w). 

[45]  If  some  of  them  renounce  before  the  ordinary,  and  the  rest 
prove  the  will,  the  renunciation  is  not  peremptory;  such  as  refused 
may,  at  any  subsequent  time,  come  in  and  administer,  and  although 
they  never  acted  during  the  lives,  they  may  assume  the  execution 
of  the  will  after  death,  of  their  co-executors,  and  shall  be  preferred 
before  any  executor  appointed  by  ihcm(w).  And  if  administration 
be  committed  before  a  refusal  by  the  surviving  executor,  such  ad- 
ministration will  be  void(.r). 

If  an  executor  of  an  executor  intermeddle  in  the  administration  of 
the  effects  of  the  first  testator,  he  cannot  refuse  the  administration  of 
the  effects  of  the  latter;  but  he  may  take  upon  himself  the  latter,  and 
refuse  the  formcr(3/). 


Sect.  IV. 

Of  an  executor  before  probate  of  the  will. 

As  a  consequence  of  the  principle  that  an  executor  derives  all  [46] 
his  title  from  the  will,  his  interest  is  completely  vested  at  the  instant 
of  the  testator's  death;  and  therefore  before  probate,  that  is,  before 
the  will  is  authenticated  in  the  spiritual  court,  and  a  copy  of  it  de- 
livered to  him,  certified  under  the  seal  of  the  ordinary,  he  may  law- 
fully perform  almost  every  act  which  is  incident  to  the  ofiicc(r). 
Not  to  mention  the  funeral,  he  may  make  an  inventory,  and  possess 
himself  of  the  testator's  effects(«):  he  may  enter  peaceably  into  the 
house  of  the  heir,  and  take  specialties,  and  other  securities  for  the 
debts  due  to  the  deceased (6),  or  remove  his  goods(c):  he  may  pay 
or  take  releases  of  debts  owing  from  the  estate:  he  may  receive  or 
release  debts  which  are  owing  to  it(^/):  he  may  sell,  give  away,  or 
otherwise  dispose,  at  his  discretion  of  the  goods  and  chattels  of  the 
testator(e):  he  may  assent  to  or  pay  legacies(/):  he  may  enter  on 
the  testator's  term  for  years(^):  he  may  commence  actions  in  right 
of  the  testator,  as  for  trespass  committed,  or  goods  taken,  or  on  a 
contract  made  in  the  testator's  lifetime,  although  he  cannot  declare 

(f)  Roll.  Abr.  907.  Com.  280.     Smith  v.  Milles,  1  Term 

\w)  5  Co.  28.     9  Co.  36  b.     Anon.  Rep.  480.     3  Bac.  Abr.  52.     Off.  Ex. 

Dyer,   IGO.     House  v.  Lord   Petre,  2  34.     11  Vin.  Abr.  202.     Wankford  v. 

Saik.  311.     Mead  v.  Lord   Orrery,  3  Wankford,  1  Salk.  299. 

Atk.   239.     Robinson  v.    Pett,   3   P.  (a)  Off.  Ex.  34. 

Wms.  251.  vid.  also  Rex  v.  Simpson,  (i)  Ibid.  34. 

Burr.  14G3.    S.  C.  1  Bl.  Rep.  45G.    11  (c)  Ibid.  92.     Vid.  infr. 

Vin.  Abr.  55.  66.  \(l)  Ibid.  35. 

(x)  Wankford  v.  Wankford,   Salk.  (e)  Ibid.  35. 

308.  (/)  Ibid.  35.     11  Vin.  Abr.  201. 

(y)  Shep.  Touchst.  464.  (i,0  11  Vin.  Abr.  203. 

\z)  Com.  Dig.  Admon.  B,  9.   Plowd. 


CHAP.  II.l      OF  EXECUTOR  BEFORE  PROBATE.  46 

before  probate,  since,,  in  order  to  assert  such  claims  in  a  court  of  jus- 
tice, he  must  produce  the  copy  of  the  will,  certified  under  seal  as 
above-mentioned,  or  as  it  is  sometimes  styled,  the  letters  testamen- 
tary;, but  when  produced,  [47]  they  shall  have  relation  to  the  time 
of  suing  out  the  writ(A).  So,  if  in  the  same  right  he  file  a  bill  in 
equity,  a  subsequent  probate  shall  be  equally  available(z);  and,  ac- 
cording to  a  late  case,  it  seems  sufficient  if  it  be  obtained  at  anytime 
before  the  hearing(A').  So,  an  executor  may  before  probate  arrest  a 
debtor  to  the  estate,  and  shall  be  justified  in  that  act  by  the  relation 
of  the  subsequent  grant(/).  But  such  relation  shall  not  prejudice 
a  third  person;  and  therefore,  where  the  debtor,  after  being  arrested 
by  the  executor  before  probate,  paid  a  debt  to  J.  S.,  and  continued 
two  months  in  prison,  he  was  adjudged  not  to  be  a  bankrupt  from 
the  time  of  the  arrest,  so  as  to  invalidate  that  payment(m). 

An  executor  may  also  maintain  actions  on  his  own  possession, 
as  trespass,  detinue,  or  replevin,  for  goods  or  cattle  of  the  testator 
taken  after  the  testator's  death(n):  so,  if  he  be  entitled  as  executor 
to  the  next  presentation  to  a  living,  and  it  become  void,  he,  or  his 
grantee,  may  maintain  a  qiiare  impedit  for  it  before  probate(o). 

[48]  So  he  may  maintain  actions,  as  trespass  or  trover,  for  sdch  of 
the  effects  as  never  came  into  his  actual  possession,  taken  or  convert- 
ed after  the  testator's  decease(/?).  So  he  may  maintain  actions  on 
contracts  either  actually  made  with  him  subsequent  to  that  event,  or 
arising  by  legal  implication,  as  assumpsit  for  the  goods  sold  by 
him(y),  or  for  money  due  to  the  testator,  received  by  the  defendant 
after  the  testator's  death(r).  In  all  such  cases,  the  causes  of  action 
arise  subsequent  to  the  attaching  of  the  plaintiff" 's  right,  and  therefore 
he  need  not  describe  himself  as  executor(;s),  and  consequently  no 
profert  of  the  letters  testamentary  is  requisite.  (1)  So,  where  a  re- 
version for  years  is  vested  in  him  in  that  character,  he  may  avow 

(h)  11  Vin.  Abr.  202,  et  seq.    Com.  (n)  11  Vin.  Abr.  203.     Off.  Ex.  36. 

Dig.  Admon.  B.  9.     Off.  Ex.  3G.     3  (o)  3  Bac.  Abr.  53.     Off.  Ex.  36. 

Bac.  Abr.  53.     9  Co.  38.     Harg.  Co.  Com.  Dig.  Pleader,  O.  14.     Smithley 

Litt.  292  b.  V.  Chomeley,  Dyer,  135. 

(i)    Humphreys   v.  Ingledon,  1   P.  {p)  3  Bac.  Abr.  53.     Frederick  v. 

Wras.    752.       Hmnphreys   v.    Hum-  Hook,  Carth.  154. 

phreys,  3  P.  Wms.  351.  {q)  Off.  Ex.  36,  37,  in  note  1.  Anon. 

{k)    Patten,   executrix,   v.    Panton,  Ventr.    109.     Bollard   v.    Spenser,    7 

1793,  cited  3  Bac.  Abr.  53.  Term  Rep.  358.   Harris  v.  Hanna,  Ca. 

(/)  Off.  Ex.  Suppl.  103.     Roll.  Abr.  Temp.  Hardwicke,  204.     Cockerill  v. 

917.  Kynaston,  4  Term  Rep.  277. 

(m)  1 1  Vin.  Abr.  204.     3.  Bac.  Abr.  (r)  Nicholas  v.  Killigrew,  Lord  Ray. 

53.     Com.  Dig.  Admon.  B.  9.     Dun-  436. 

comb  V.  Walker,  3  Lev.. 57.     Skinn.  (.s)  Smith  v.  Barrow,  2  Term  Rep. 

22.  87.     Cook's  Bank.  L.  4th  edit.  94.  477. 


(1)  In  all  cases  of  promises,  express  or  implied,  made  to  or  by  an  executor  or  administra- 
tor after  the  death  of  the  testator  or  intestate,  an  action  lies  by  or  against  the  executor  or 
administrutor  personally.  Grier  v.  Huston,  8  Serg.  &  Rawle,  402.  See  Cobum  V.  Amarl, 
3Mass.  ilep.  318,  SMass.  llcp.  I'JO.  .    ' 


48  OF  THE  PROBATE.  [bOOK  I. 

without  probate  for  the  rent  which  accrued  after  the  testator's  death, 
but  not  for  such  as  accrued  beforc(/). 

Such  arc  the  acts  which  an  executor,  although  the  will  has  not 
received  the  sanction  of  the  spiritual  court,  is  warranted  in  perform- 
ing, and  which  his  death  before  probate  will  not  annul(«). 

On  the  other  hand,  if  he  have  elected  to  administer,  he  may  [49] 
also  before  probate  he  sued  at  law,  or  in  equity,  by  the  deceased's 
creditors,  whose  rights  shall  not  be  impeded  by  his  delay,  and  to 
whom,  as  executor  dejure  or  cU  facto,  he  has  made  himself  res])on- 
sible(t'). 

If  an  executor  die  before  probate,  he  is  considered  in  point  of  law 
as  intestate  in  regard  to  the  executorship(i6'),  although  he  have  made 
a  will  and  appointed  executoi's;  and  although  he  die  after  taking  the 
oath,  if  before  the  passing  of  the  grant. 

If  A.  be  executor  for  a  certain  period,  and  B.  be  nominated  execu- 
tor for  the  time  subsequent,  and  A.  prove  the  will;  after  the  time  is 
expired,  B.  may  sue  without  another  probate(a.'). 


Sect.  V. 

Of  the  probate. — Jurisdiction  of  granting  the  same — of  bona 

notabilia. 

I  PROCEED  now  to  consider  the  probate  of  a  will.  The  jurisdic- 
tion of  proving  wills  consequent,  as  will  be  hereafter  shown,  [50]  on 
the  power  of  granting  administrations,  regularly  belongs  to  the  bishop 
of  the  diocese,  or  the  metropolitan  of  the  province,  in  which  the  par- 
ties resided  at  the  time  of  their  death(3/).  But  if  a  testator  die  with- 
in some  peculiar  jurisdiction,  which  is  either  regal,  archiepiscopal, 
episcopal,  or  archidiaconal:  in  each  of  these  the  owner  hath  of  com- 
mon right  the  power  of  granting  probate.  This  privilege  is  founded 
on  the  notionof  an  original  composition  between  such  owner  and  the 
ordinary  of  the  diocese  for  that  purpose(z). 

Courts  baron,  which  have  had  the  probate  of  wills  from  time  im- 
memorial, and  have  always  continued  that  usage,  are  also  entitled  to 
this  species  of  jurisdiction;  but  they  can  claim  it  only  by  prescrip- 
tion, (c) 

(0  Wankford  v.  Wankford,  1  Salk.  Vin.  Abr.  68.  90. 

302.  307.   Bollard  v.  Spenser,  7  Term  {x)  Com.  Dig.  Admon.  B.  9.     Ca. 

Rep.  359.  Ch.  265.     11  Vin.  Abr.  56. 

{u)  Off.  Ex.  35.     11  Vin.  Abr.  204.  {y)  3  Bac.  Abr.  34.  39.     Com.  Dig. 

Anon.  Dyer,  367.    Wankford  v.  Wank-  Admon.  B.  6.    4  Burn's  Eccl.  L.  188. 

ford,  1  Salk.  306,  307.  {z)   3   Bac.  Abr.  39.     Denham  v. 

(y)  Com.  Dig.  Admon.  B.  9.  Plowd.  Stephenson,   Salk.  40,   41.     11  Vin. 

Com.  280  b.    fl  Vin.  Abr.  205.     Dul-  Abr.  77. 

wich  College  v.  Johnson,  2  Vern.  49.  (o)  3  Bac.  Abr.  39.     Off.  Ex.  44. 

Q/r.  Ex.  37.  Denham  V.Stephenson,  Salk.  41.    At. 

(«;)  Off.  Ex.  Suppl.  74,  75.  182.  IT  kins  v.  Hill,  Cowp.  286. 


CHAP.  II.]  OF  THE  PROBATE.  50 

By  custom  also  the  probate  of  wills  of  burgesses  belongs  to  the 
mayors  of  some  boroughs  in  respect  of  lands  devisable  within  the 
same;  yet,  as  to  personal  property,  the  will  must  be  proved  before 
the  ordinary(6). 

But  in  general  a  probate  can  be  granted  only  in  the  court  of  the  or- 
dinary, or  of  the  metropolitan. 

[51]  If  all  the  effects  at  the  time  of  the  testator's  death  lie  within 
one  diocese,  the  executor  ought  regularly  to  appear  before  the  bishop, 
or  his  surrogate,  and  prove  the  will. 

But  if  the  testator  hath  left  bona  notabilia,  or  effects  to  the  value 
established  by  92  canon  Jac.  1.  namely,  a  hundred  shillings,  in  two 
distinct  dioceses,  or  in  several  peculiars  within  the  same  province; 
then  the  will  must  be  proved  before  the  metropolitan,  by  way  of 
special  prerogative(c) ;  whence  the  court  where  the  validity  of  such 
wills  is  tried,  and  the  office  where  they  are  registered,  are  called  the 
prerogative  court,  and  the  prerogative  office,  of  the  provinces  of  Can- 
terbury and  Yoi'k(^).  So  if  there  be  bona  notabilia  in  those  seve- 
ral provinces,  the  archbishops  shall  in  each  of  them  grant  a  probate 
according  to  the  bona  notabilia  in  their  respective  provinces.  Each 
of  them  has  supreme  jurisdiction,  and  neither  can  act  within  the  pro- 
vince of  the  other(e).  If  there  be  bona  notabilia  in  different  dio- 
ceses of  one  province,  and  in  one  diocese  only  of  the  other;  in  re- 
spect to  the  former,  tfie  archbishop  shall  have  the  probate;  in  respect 
to  the  latter,  the  particular  bishop(y). 

[52]  So  if  the  testator,  not  in  itinere,  die  in  one  diocese,  not  hav- 
ing any  goods  there,  but  having  bona  notabilia  in  another  diocese, 
the  archbishop  shall  grant  the  probate(5-). 

•  So  if  the  goods  be  in  several  peculiars  of  a  bishop's  diocese,  in 
"that  case  probate  shall  not  be  granted  by  him,  but  by  the  metropoli- 
tan, inasmuch  as  peculiars  are  exempt  from  ordinary  jurisdiction(A). 
But  whei-e  the  testator  dies  possessed  of  goods  in  the  diocese  of  an 
archbishop,  and  in  a  peculiar  of  the  same  diocese,  there  must  be  seve- 
ral probates:  the  archbishop  shall  have  no  prerogative,  because  the 
peculiar  was  derived  out  of  his  episcopal  jurisdiction(^).  By  the 
canon  92  Jac.  1.  above  referred  to,  goods  which  a  man  has  with  him, 
who  dies  in  itinere,  shall  not  make  bona  notabiHa[k);  but  if  a- man 
have  two  houses  in  different  dioceses,  and  resides  chiefly  at  one,  but 
sometimes  goes  to  the  other,  and  being  there  for  a  day  or  two,  dies, 

{b)  3  Bac.  Abr.  40.     Off.  Ex.  45.  15.     Off.  Ex.  48. 

Off'.  Ex.  Suppl.  10.  (/)  Off.  Ex.  48. 

(c)   Bl.  Com.  509.     3  Bac.  Abr.  3G.  (o-)  3  Bac.  Abr.  36.    Roll.  Abr.  909. 

Com.  Ui(T.  Admon.  B.  3.     Off.  Ex.  45.  4  Burn.  Eccl.  L.  189.     11  Vin.  Abr. 

48.     4Burn.  Eccl.  L.  191.    Roll.  Abr.  80. 

909.     11  Vin.  Abr.  79.     Swinb.  p.  G.  (Ji)  4  Burn.  Eccl.  L.  191.     11  Vin. 

s.  11.  Abr.  80.     Gibs.  Cod.  472.     Swinb.  p. 

{d)  2  Bl.  Com.  509.     11  Vin.  Abr.  6.  s.  11. 

56.  pi.  7.     Vin.  Harg.  Co.  Litt.  94.  (0  4   Burn   Eccl.  L.    191.     Gibs. 

(e)  3    Bac.   Abr.   30.     Burston   v.  Cod.  472.     Cro.  El.  719.     Vid.  1  Bl. 

Ridfcy,  1  Salk.  39.     Shaw  v.  Slou<>h-  Coin.  3K0. 

ton,  2  Lev.  80.     11  Vin.  Abr.  70.  pi.  (A)  Vid.  Off.  Ex.  45  &  Suppl.  27. 
G 


52  OF  THE  PROBATE.  [bOOK   I. 

leaving  no  hnna  notahUia  in  the  first  mentioned  house,  probate  shall 
be  granted  by  the  bishop  of  the  diocese  in  whicli  the  testator  died, 
for  he  was  commorant  there,  and  not  there  as  a  travel]cr(/). 

[53]  If  there  be  bona  nolahilla  in  England  and  Ireland,  several 
probates  shall  be  granted  by  the  archbishop  or  bishop  in  England, 
and  the  archbishop  or  bishop  in  Ireland,  as  the  case  may  require(??i). 
The  probate  of  a  bishop's  will,  although  he  had  goods  only  in  his 
own  jurisdiction,  belongs  to  the  arch])ishop  of  the  province(?i).  If 
the  testator  died  beyond  sea,  although  the  goods  be  in  one  diocese 
only,  the  archbishop  is  to  grant  tlie  ])robate(o).  If  the  probate  be 
granted  by  a  bishoj),  or  inferior  jutlge,  when  it  does  not  belong  to 
him,  it  is  void;  l)ut  if  it  be  granted  by  the  metropolitan  when  it 
does  not  belong  to  him,  it  is  only  voidable,  and  is  of  force  till  rever- 
sed by  sentence,  for  he  hath  jurisdiction  over  all  the  dioceses  within 
his  province(7;). 

In  the  above-mentioned  canon,  Jac.  1.  there  is  a  provision,  that 
the  jurisdiction  of  those  dioceses  shall  not  be  prejudiced  where,  by 
composition  or  custom,  bona  notabilia  are  rated  at  a  greater  sum, 
as  in  London,  where  by  composition  they  are  to  amount  to  ten 
pounds(</). 

Nor  is  it  necessary  that  tlie  deceased  should  have  left  effects  to  the 
value  of  five  pounds  in  each  of  the  several  dioceses  where  they  are 
dispersed;  if  there  be  effects  in  any  one  dioces'e,  other  than  that  [54] 
in  which  he  died,  to  the  amount  of  five  pounds,  they  constitute  bona 
notabilia{r).  But  if  the  goods  in  the  diocese  where  he  died  be  of 
the  value  of  ten  pounds  or  upwards,  and  he  have  not  left  goods 
amounting  to  five  pounds  in  another  diocese,  they  shall  not  be 
denominated  bona  notahiUa{s).  If  goods  be  left  in  two  dioceses 
to  the  amount  of  five  pounds  in  the  whole,  they  shall  be  bona  noLa- 
bilia,  and  consequently  subject  to  the  archbishop's  jurisdiction(/.), 
for  in  that  case  neither  of  the  bishops  has  an  exclusive  authority. 
Bona  notabilia  may  consist  of  goods  to  the  value  of  five  pounds  in 
one  diocese,  and  a  lease  or  term  for  years  of  that  value  in  another,  in 
which  the  lands  lie(?(). 

Debts  due  to  the  deceased,  however  difficult  to  be  collected,  or 
however  desperate,  may  make  bona  notabilia[v). 

So,  it  seems,  a  debt  due  from  the  king,  for  which  there  is  no  reme- 
dy but  by  petition,  may  fall  within  the  same  description(^^). 

But  if  there  be  a  bond  in  the  penalty  of  five  pounds  to  secure  the 

(/)  4  Burn.  Eccl.  L.  191.     Hilliard  (r/)  3  Bac.  Abr.  37.     Off.  Ex.  45. 

V.  Cox,  1  Salk.  87.  (>•)  I^i<l-  ^7.     Godolph.  69. 

{m)  3  Bac.  Abr.  3G.     Daniel  v.  Lu-  («)  Ibid.  37.     Ibid.  G9. 

ker,  Dyer,  305.  Roll.  Abr.  908.   Gibs.  {t)  4  Burn.  Eccl.  L.  189.  Roil.  Abr. 

Cod.  472.  908,  909. 

(«)  3  Bac.  Abr.  37.     4  Inst.  335.  {u)  3  Bac.  Abr.  37.      Com.  Dig. 

(o)  lb.  lb.  35.     Roll.  Abr.  908.  Admon.  B.  4. 

{p)  lb.  lb.  36.     4  Burn  Eccl.  L.  {v)  3  Bac.  Abr.  47.    Com. Dig.  Ad- 

193.     Ofi'.   Ex.    Suppl.   27.     11  Vin.  mon.  B.  4. 
Abr.  75.  80.     Gibs.  Cod.  472.  {w)  OIT.  Ex.  46.     11  Vin.  Abr.  80. 


CHAP.  II.]  OF  THE  PROBATE.  54 

paymeot  of  a  less  sum,  and  the  same  be  forfeited,  it  shall  not  be 
classed  among  bona  notabilia{x).  And  it  was  so  held  even  ante- 
[55]cedently  to  the  statute  4  &  5  Ann.  c.  16.  s.  13,  whereby  the 
penalty  is  saved  on  bringing  principal,  interest,  and  costs  into  court. 

Nor  shall  lands  devised  to  executors  for  payment  of  debts  and 
legacies,  although  they  become  assets,  be  considered  as  such  goods(y). 

On  this  point  the  law  makes  a  distinction  between  debts  by  spe- 
cialty and  debts  by  simple  contract.  It  regards  debts  by  specialty 
as  the  deceased's  goods  in  that  diocese  where  the  securities  are  found 
at  the  time  of  his  death,  although  they  were  entered  into  in  another, 
or  the  debtor  or  creditor,  at  the  time  when  they  were  executed,  lived 
in  a  different  diocese(2-).  But  debts  by  simple  contract  follow  the 
person  of  the  debtor,  and  therefore  are  esteemed  the  deceased's  ef- 
fects in  that  diocese  where  the  debtor  resided  at  the  creditor's 
death(«).  On  this  principle  it  hath  been  holden,  that  a  judgment  ob- 
tained in  one  of  the  courts  at  Westminster,  although  in  an  action  laid 
in  Dorsetshire,  made  bona  notabilia,  because  the  record  was  at 
Westminster;  but  that  a  debt  on  a  bill  of  exchange  followed  the  per- 
son of  the  debtor(6).   • 

An  annuity  out  of  a  parsonage  shall  be  reputed  to  be  property  in 
the  diocese  where  the  parsonage  lies(c). 

[56]  And  leases  for  years  where  the  land  lies,  not  where  the  lease 
is  merely  found  ((/). 

Debts  on  recognizances,  statutes,  or  judgments,  shall  be  bona 
notabilia,  where  they  were  acknowledged  or  given(e). 

And  by  statute  4  &  5  An7i.  c.  16.  s.  26,  salary,  wages,  or  pay  due 
to  persons  for  work  in  any  of  her  majesty's  yards  or  docks,  shall  not 
be  taken  or  deemed  to  be  bo)ia  notabilia,  whereby  to  found  the  ju- 
risdiction of  the  prerogative  courts. 

But  to  obtain  an  order  of  the  Court  of  Chancery  for  the  payment 
of  money  out  of  court,  however  small  the  amount,  a  prerogative  pro- 
bate is  held  to  be  indispensable(  /). 

If  the  will  be  not  contested,  the  executor  may  prove  it  in  the  com- 
mon form  by  his  own  oath,  and  in  some  of  the  dioceses  of  York, 
with  the  additional  oath  of  one  witness;  or  in  case  its  validity  is  called 
in  question,  he  will  be  required  to  substantiate  it  more  solemnly  pe?' 
testes,  by  the  examination  of  witnesses  in  the  presence  of  the  parties 
interested,  as  the  widow  and  next  of  kin(^).     This  latter  mode  of 

(x)  Off.  Ex.  4G.  Abr.  80. 

(y)  3  Bac.  Abr.  37.     Off.  Ex.  47.  (d)  Com.  Dig.  Admon.  B.  4. 

11  Vin.  Abr.  80.  (c)    Com.     Dig.    Admon.     B.    4. 

(z)  3  Bac.  Abr.  37.     Off.  Ex.  40.  Daniel  v.  l.ulver,  Dyer,  305,  in  note. 
Roll.  Abr.  909.     Shep.  Touchst.  463.  (/)  Newman  v.  Hodgson,  7  Ves. 

(«)  3  Bac.  Abr.  38.     Off.  Ex.  47.  jiin.  409.     Thomas  v.  Davies,  12  Ves. 

((!/)  Gold    V.   Strode,    Carth.     149.  jun.  417. 
Denham  v.   Stephepson,   1   Salk  40.  (g)  3   Bac.  Abr.  39.     2  Bl.  Com. 

Adams  v.  Savage,  Lord  Raym.  854.  508.    4  Burn.  Eccl.  J-.  205, 207.    Go- 

11  Vin.  Abr.  77.  80.  '  dolph.  05.     1  Ought.  20.    Swinb.  b.  G. 

(c)  Com.  Dig.  Admon.  B.  4.  Daniel  s.  14. 
V.  Luker,  Dyer,  305,  in  note.     11  Vin. 


50  OF  THE  PRORATE.  [rOOK   I. 

provinp;  a  will  is  seldom  resorted  to,  unless  at  the  instance  of  ^  party 
whose  object  is  to  oppose  ii{h);  but  the  executor  himself  may,  for 
greater  safety,  if  he  have  an  interest  in  the  \vill,  elect  to  have  it 
sanctioned  by  this  more  decisive  species  of  evidence,  and  call  on  the 
next  of  kin  to  see  it  propounded(i). 

[57]  When  a  will  is  to  be  thus  solemnly  proved,  two  witnesses 
are  indispensable;  for  generally,  by  the  civil  law,  the  testimony  of 
two  persons  is  requisite,  and,  therefore,  if  in  the  probate  of  a  Avill 
that  of  one  witness  be  disallowed  in  the  ecclesiastical  court,  no  man- 
damus will  lie;  for  inasmuch  as  that  court  has  jurisdiction  of  the  sub- 
ject matter,  it  has  also  jurisdiction  of  the  mode  of  proof,  and  the  pro- 
ceedings respecting  it{k). 

It  is  not  necessary  that  such  witnesses  should  have  read  the  will, 
or  heard  it  read,  if  they  can  depose  that  the  testator  declared  that  the 
writing  produced  was  his  last  will  and  testament(/),  or  that  he  duly 
executed  the  same  in  their  presence. 

If  the  will  or  codicil  be  written  in  the  testator's  hand-writing,  al- 
though it  have  neither  his  name  subscribed,  nor  his  seal  affixed  to  i,t, 
nor  had  witnesses  present  at  its  publication,  yet  if  the  omission  of 
these  solemnities  afford  no  presumption  of  a  change  of  intention(m), 
it  is  of  sufficient  validity  on  proof  of  the  hand-writing(n),  by  the 
evidence  of  two  persons  acquainted  with  the  character  of  it  from 
having  seen  him  write;  if,  however,  there  be  a  difference  of  opinion 
in  witnesses  as  to  hand-writing,  the  ecclesiastical  court  will  re- 
ceive the  evidence  of  persons  skilled  in  hand-writing  by  compari- 
son, who  had  not  seen  him  write(o);  but  in  case  there  be  a  single 
subscribing  witness  to  the  will,  and  who  appears  to  attest  it,  the  tes- 
timony of  one  other  person  only  to  the  above-mentioned  effect  is  re- 
quisite. 

[58]  So,  although  written  by  another  hand,  nor  even  signed  by  the 
testator,  if  it  can  bie  shown  to  be  according  to  his  instructions,  and 
read  over  and  approved  by  him,  it  is  equally  effectual(7;). 

And  so  where  interrogatories  were  put  to  a  testator  who  was  iii 
extremis,  but  in  full  exercise  of  his  testamentary  powers,  and  such 
interrogatories  and  his  answers  were  comrpitted  to  writing,  and  read 
over  to  and  approved  by  him,  it  was  held  good(^).  But  the  instruc- 
tions, to  be  effectual,  must  be  complete,  and  not  left  in  an  unfinished 
state,  and  subject  to  the  further  consideration  of  the  testator(r). 

In  granting  probate,  the  form  of  the  instrument  is  not  looked  to  by 
the  ecclesiastical  court,  it  is  the  intention  of  the  party,  and  whether 

{h)  4  Burn.  Eccl.  L.  207.  (n)  2  Bl.  Com.  501. 

\i)  4  Burn.  Eccl.  L.208.     1  Ought.  (o)  Beaumont  v.  Perkins,  1  Phill. 

20.  Rep.  78. 

{h)  4  Burn.  Eccl.  L.  206.     Roll.  {p)  2  Bl.  Com.  501.   Vid.  Limbery 

Ahr.   300.     Twaites  v.  Smith,  1   P.  v.  Mason,  Com.  Rep.  451. 

Wms.  12.  {(f)  Green  v.   Skipworth,  1   Phill. 

(/)  4  Burn.  Eccl.  L.  205.    Godolph.  Rep.  53, 

66.  (r)  Devereux  v.  Bullock,  1  Phill- 

(m)  Supr.  3.  Rep.  GO. 


CHAP.  II.]    OF  THE  PROBATE  OF  NUNCUPATIVE  WILLS.       58 

the  instrument  appears  to  be  testamentary ;  as  a  paper  expressed  to.be 
a  deed  of  gift,  an.d  declaring  "I  do  hereby  give  (after  my  death)"(.s_), 
and  other  cases  of  the  like  nature,  where  the  animus  testandi  is 
clearly  shown (^).(l) 

If  a  testamentary  paper  be  in  the  hand-writing  of  the  deceased,  al- 
though unfinished  and  unexecuted,  if  prevented  by  the  act  of  God, 
it  will  be  admitted  to  probate(t<). 

An  executor  on  taking  probate  swears  that  the  writing  contains 
the  true  last  will  and  testament  of  the  deceased,  as  far  as  the  depo- 
nent knows  or  believes,  and  that  he  will  truly  perform  the  same  by 
paying  first  the  testator's  debts,  and  then  the  legacies  therein  con- 
tained, as  far  as  the  goods,  chattels,  and  credits  will  thereto  extend, 
and  the  law  charge  him;  and  that  he  will  make  a  true  and  perfect  in- 
ventory of  all  the  goods,  chattels,  and  credits,  and  exhibit  the  same 
into  the  registry  of  the  spiritual  court  at  the  time  assigned  by  the 
court,  and  render  a  just  account  thereof  when  lawfully  required. 

When  the  will  is  proved*  the  original  is  deposited  in  .the  registry 
of  the  ordinary  or  metropolitan,  and  a  copy  thereof  in  parchment  is 
made  out  under  his  seal,  and  delivered  to  the  executor,  together  with 
a  certificate  of  its  having  been  proved  before  him;  and  such  copy 
and  certificate  are  usually  styled  the  probate(y). 


[59]  Sect.  VI. 
Of  the  ijrohate  of  nuncupative  wills. 

A  NUNCUPATIVE  will  is  also  capable  of  being  proved(M?).  But  by 
the  statute  of  fraudg,  after  six  months  from  the  speaking  of  the  pre- 
tended testamentary  words,  no  testimony  shall  be  received  to  prove 
any  will  nuneupative,exccpt  the  testimony,  or  the  substance  thereof, 
were  committed  to  writing  within  six  days  after  the  making  of  such 
will.  And  no  letters  testamentary,  or  probate  of  any  nuncupative 
will,  shall  pass  the  seal  of  any  court  till  fourteen  days  at  the  least 
after  the  decease  of  the  testator  be  fully  expired. 

Nor  shall  any  nuncupative  will  be  at  any  time  received  to  be 

(s)  Thorold  V.  Thorold,   1    Phill.  gold,  ib,  1714. 

Rep.  1.  (w)  Scott  V.  Rhodes,  1  Phill.  Rep.  12. 

(n  Green  v.  Provide,  1  Mod.  117.  (y)  2B1.  Com.  508.     4iiurn.  Eccl. 

Rigden  v.  Vallier,  2  Ves.  252.     Corp  L.  215.     11  Vin.  Abr.  56.  pi.  7.  Bac. 

V. 'Corp,  Prerog.  Court.  1793.     Hog  Useof  the  Law,  G7. 

V.    Lashley,   ib.    1789.     Marwick    v.  {w)  2  Bl.  Com.  500. 
Taylor,  ib.  1722.      Shergold  v.  Sher- 

(1)  A  paper  somewhat  in  the  form  of  a  letter,  beginning,  "In  the  name  of  Cod,  Amen. 
If  I  should  not  come  to  you  again,  my  son  M.  shall  pay,  bcc."  was  liehl  not  to  be  admis- 
sible to  record  as  the  will  of  the  writer  of  it,  evidence  being  given  Ihafrhe  went  to  Ken- 
tucky, and  returned,  and  lived  several  weeks  after.  Wugiier  v.  Jf  Donald,  '2  Ifarr.  k 
Joh"e  ?«> 


59  OF  THE  PROBATE  OF  THE  [bOOK  I. 

proved,  unless  process  have  first  issued  to  call  in  the  widow,  or  next 
of  kindred  to  the.  deceased,"  to  the  end  they  may  coptest  the  same  if 
they  plcase(.?-).  (1)  And  (as  we  may(?y)  remember)  no  will  in  wri- 
ting concerning  any  goods  or  chattels,  or  personal  estates,  shall  be  re- 
pealed, nor  shall  any  clause,  devise,  or  bequest  therein  be  altered  or 
changed  by  any  words,  or  will  by  word  of  mouth  only;  except  the 
samebe  in  the  life  of  the  testator  committed  to  writing,  and  after  the 
writing  thereof  read  to  the  testator,  and  allowed  by  him,  and  proved 
to  be  so  done  by  three  witnesses  at  the  least. 


[60]  Sect.  VII. 

Of  the  prohate  of  the  loills  of  seamen  and  marines. 

In  regard  to  the  making  and  probate  of  the  wills  of  petty  officers 
and  seamen  in  the  king's  service,  and  of  non-commissioned  officers 
of  marines,  and  marines  serving  on  board  a  ship  in  the  king's  ser- 
vice, by  the  statute  55  Geo.  3.  c.  60,  above  referred  to(r),  no  will 
made  by  any  petty  officer  or  seamen,  non-commissioned  officer  of 
marines  or  marifie,  before  his  entry  into  his  majesty's  service,  shall 
be  valid  to  pass  or  bequeath  any  wages,  pay,  prize-money,  bounty- 
money,  or  other  allowances  of  money,  to  accrue  due  for  or  in  respect 
of  the  service  of  any  such  petty  officer  or  seaman,  non-commissioned 
officer  of  marines  or  marine,  in  his  majesty's  navy;  nor  shall  any 
will  made  or  to  be  made  by  any  such  petty  officer  or  seaman,  non- 
commissioned officer  of  marines  or  marine,  who  shall  be  or  shall  have 
been  in  the  service  of  his  majesty,  his  heirs  or  successors,  or  at  any 
time  since,  be  good,  valid,  or  sufficient  to  bequeath  any  such  wages, 
&c.  due  or  to  grow  due  to  any  such  petty  officer,  &c.  unless' such 
will  shall  contain  the  name  of  the  ship  to  which  the  person  executing 
the  same  belonged  at  the  time,  or  to  which  he  last  belonged;  and  also 
a  full  description  of  the  degree  of  relationship  or  residence  of  the 
person  or  persons  to  whom  or  in  whose  favour,  as  executor  or  exe- 
cutors, the  same  shall  be  granted  or  made;  and  also  the  day  of  the 
month  and  year,  and  the  name  of  the  place  when  and  where  the 
same  shall  have  been  executed;  nor  shall  any  such  will  be  good, 
valid,  or  sufficient  for  the  purposes  aforesaid,  unless  the  same  shall, 
in  the  several  cases  hereinafter  specified,  be  executed  and  attested  in 
the  manner  hereinafter  mentioned;  that  is  to  say,  in  ca^e  any  such 
will  shall  be  made  by  any  such  petty  officer,  &c.  at  any  time  or  times 

(x)  Vid.  supr.  4.     •  {-)  Vid.  supr.  5. 

(«/)  Vid.  supr.  16. 


(1)  The  act  of  170:),  sect.  5,  contitins  the  same  provision,  T-erZ-flr/w,  (Pui-d.  Dig.  801. 
1  Dall.  Laws,  5,?.  1  Sm.  Laws,  3.3),  and  the  act  of  8th  April,  1833,  (Pamph.  Laws,  249), 
lias  made  no  alteration  therein. 


CHAP.  II.]  WILLS  OF  SEAMEN.  60 

whilst  they  shall  respectively  belong  to  and  be  on  board  of  any  ship 
or  vessel  belonging  to  his  majesty,  his  heirs  or  successors,  as  part  of 
the  complement  thereof,  or  be  borne  on  the  books  of  any  such  ship 
or  vessel  as  a  supernumerary,  or  as  an  invalid,  or  for  victuals  only,  un- 
less such  will  shall  be  executed  in  the  presence  of  and  attested  by  the 
captain  or  other  officer  having  the  command  of  such  ship  or  vessel, 
or  (during  the  absence  of  such  captain  or  other  officer  on  leave  or  on 
separate  service)  by  the  commanding  officer  of  such  ship  or  vessel 
for  the  time  being;  and  who,  in  that  case,  shall  state  at  the  foot  of 
such  attestation  the  absence  of  such  captain  or  other  commanding  of- 
ficer from  such  ship  or  vessel,  at  the  time  of  the  execution  of  such  will, 
and  the  occasion  thereof;  or  in  case  of  the  inability  of  such  captain 
or  commanding  officer  by  reason  of  wounds  or  sickness,  to  attest  any 
such  will,  then,  unless  such  will  shall  be  executed  in  the  presence  of 
and  attested  by  the  first  lieutenant  or  other  officer  next  in  command 
of  such  ship  or  vessel,  who  shall  state  at  the  foot  of  such  attestation 
the  inability  of  such  captain  or  commanding  officer  to  attest  the  same: 
in  case  any  such  will  shall  be  made  by  any  such  petty  officer,  &c.  in 
any  of  his  majesty's  hospitals,  or  on  board  of  any  of  his  majesty's 
hospital  ships,  or  in  any  military  or  merchant  hospital,  or  at  any 
sick  quarters  either  at  home  or  abroad,  unless  such  will  shall  be  exe- 
cuted in  the  presence  of  and  attested  by  the  governor,  physician, 
surgeon,  assistant-surgeon,  agent,  or  chaplain  of  any  such  hospital  or 
sick  quarters  of  his  majesty,  or  by  the  commanding  officer,  agent, 
physician,  surgeon,  assistant-surgeon,  or  chaj^lain,  for  the  time  being 
of  any  such  hospital  ship,  or  by  the  physician,  surgeon,  assistant-sur- 
geon, agent,  chaplain,  or  chief  officer  of  such  military  or  merchant 
hospital,  or  other  sick  quarters,  or  one  of  them:  in  case  any  such  will 
shall  be  made  by  any  such  petty  officer,  &c.  on  board  of  any  ship 
or  vessel  in  the  transport  service,  or  in  any  merchant  ship  or  vessel, 
unless  the  same  shall  be  executed  in  the  presence  of  and  attested  by 
some  commission  or  warrant  officer,  or  chaplain  in  his  majesty's 
navy,  or  some  commission  officer,  or  chaplain  belonging  to  his  majes- 
ty's land  forces  or  royal  marines,  or  the  governor,  physician,  sur- 
geon, assistant-surgeon,  or  agent  of  any  hospital  in  his  majesty's 
naval  or  military  service,  who  may  happen  to  be  then  on  board  of 
such  transport  or  merchant  vessel,  or  by  the  master  or  first  mate  of 
such  transport  or  merchant  vessel,  or  one  of  them:  in  case  any  such 
will  shall  be  made  by  any  such  petty  officer,  &c.  after  he  shall  have 
been  discharged  from  his  majesty's  service;  unless  the  same  (if  the 
party  making  such  will  shall  then  reside  in  London  or  Westminster, 
or  within  the  bills  of  mortality)  sliall  be  executed  in  the  presence  of 
and  attested  by  the  inspector  for  the  time  being  of  seamen's  wills,  or 
his  assistant  or  clerk;  or  unless  the  same  (if  the  party  making  such 
will  shall  then  reside  at  or  within  the  distance  of  seven  miles  from 
any  port  oi'  place  where  the  wages  of  seamen  in  his  majesty's  ser- 
vice are  paid)  shall  be  executed  in  the  presence  of  and  attested  by  one 
of  the  clerks  in  the  office  of  the  treasurer  of  the  navy  resident  at 
such  port  or  place;  or  unless  the  same  (if  the  party  making  such  will 


60  OP  THE,  PROBATE  OP  TflE  [pOOK  I. 

shall  then  reside  at  any  other  place  in  Great  Britain  or  Ireland,  or  in 
the  islands  of  Guernsey,  Jersey*  Alderney,  Sark,  or  Man)  shall  be 
executed  in  the  presence  of  and  attested  by  one  of  his  majesty's  jus- 
tices of  the  peace,  or  by  the  minister  or  officiating  minister  or  curate 
of  the  parish  or  place  in  wliich  such  will  shall  be  executed;  or  unless 
the  saipe  (if  the  party  making  such  will  shall  then  reside  in  any 
other  part  of  his  majesty's  dominions,  or  any  colony,  plantation,  set- 
tlement, fort,  factory,  or  any  other  foreign  possession  or  dependency 
of  his  majesty,  his  heirs  or  successors,  or  any  settlement  within  the 
charter  of  the  East  India  Company)  shall  be  executed  in  the  pres- 
ence of  and  attested  by  some  commission  or  warrant  officer  or  chap- 
lain of  his  majesty's  navy,  or  commission  officer  of  royal  marines,  or 
the  commissioner  of  the  navy,  or  naval  storekeeper  at  one  of  his 
majesty's  naval  yards,  or  a  minister  .of  the  church  of  England  or 
Scotland,  or  a  magistrate  or  principal  officer,  residing  in  any  such 
island,  colony,  plantation,' settlement,  fort,  factory,  or  other  possess- 
ion or  dependency  of  his  majesty,  or  settlement  within  the  charter 
of  the  East  India  Company;  or  (if  the  party  making  such  will  shall 
then  reside  at  any  place  not  within  his  majesty's  dominions,  or 
any  settlement,  fort,  factory,  or  other  foreign  possession  or  depend- 
ency of  his  majesty,  his  Iieirs  or  successors,  or  any  settlement 
within  the  charter  of  the  East  India  Company),  unless  the  same  shall 
be  executed  in  the  presence  of  and  attested  by  the  British  consul  or 
vice-consul,  or  some  officer  having  a  public  appointment  or  commis- 
sion, civil,  naval,  or  military  under  his  majesty's  government,  or  by 
a  magistrate  or  notary -public,  of  or  near  the  place  where  such  will 
shall  be  executed. 

Every  will,  which  hath  been,  or  which  at  any  time  or  times  here- 
after shall  be  made  by  any  such  petty  officer,  &c.  at  any  time  or  times 
Avhilst  they  were  or  shall  be  respectively  prisoners  of  war  in  parts 
beyond  the  seas,  are  and  shall  be  good,  valid,  and  sufficient;  provided 
such  will  shall  have  been  executed  in  the  presence  of  and  attested  by 
some  commission  or  warrant  officer  of  his  majesty's  navy,  commis- 
sion officer  of  royal  marines,  physician,  surgeon,  assistant-surgeon, 
agent  or  chaplain  to  some  naval  hospital,  or  some  commission  officer, 
physician,  surgeon,  assistant-surgeon,  or  chaplain  of  the  army,  or  any 
notary-public. 

But  no  will  of  any  seaman,  contained,  printed,  or  written  in  the 
same  instrument,  paper,  or  parchment,  with  a  letter  of  attorney,  shall 
be  good  or  available  in  law,  to  any  intent  or  purpose  whatever. 

And  all  captains  and  commanders  of  ships  shall,  upon  their  monthly 
muster  books  or  returns,  specify  which  of  the  persons  mentioned  in 
the  said  returns  have  made  or  granted  any  will  during  that  month 
or  other  space  of  time  from  the  preceding  return,  by  inserting  the 
date  thereof  opposite  the  party's  name,  under  the  head  of  "Will." 

But  before  any  such  will  shall  be  attempted  to  be  acted  upon  or 
put  in  force,  the  same  shall  be  sent  to  the  treasurer  of  the  navy,  at  the 
navy -pay  office,  London,  in  order  that  the  same  may  be  examined  by 
the  inspector  of  seamen's  wills,  who,  or  his  assistants,  shall  imme- 


CHAP.  II.]  WILLS  OP  SEAMEN. 


60 


diately  on  receipt  of  every  such  will,  duly  register  the  same,  in  a 
numerical  and  alphabetic  manner,  in  books  to  be  kept  for  that  pur- 
pose, specifying  the  date  of  such  will,  the  place  where  executed,  and 
the  name  and  addition,  names  and  additions  of  the  person  or  persons 
to  whom  or  in  whose  favour,  as  executor  or  executors,  the  same  shall 
have  been  granted  or  made;  and  also  the  names  and  additions  of  the 
witnesses  attesting  the  same,  and  shall  mark  the  said  wills,  with 
numbers  corresponding  with  the  numbers  made  on  the  entries  thereof 
in  the  said  books;  and  the  said  inspector  sha:ll  take  all  due  and  pro- 
per means  to  ascertain  the  authenticity  of  every  such  will;  and  in 
case  it  shall  appear  to  him,  or  he  shall  have  reason  to  suspect  that 
any  such  will  is  not  authentic,  he  shall  forthwith  give  notice  in  wri- 
ting to  the  person  or  persons  to  whom  or  in  whose  favour  such  will 
shall  have  been  made,  as  executor  or  executors,  that  the  same  is 
stopped,  and  the  reason  thereof,  and  shall  also  report  the  same  to  the 
treasurer  or  paymaster  of  the  navy,  and  shall  enter  his  caveat  against 
such  will,  which  shall  prevent  any  money  from  being  had  and  re- 
ceived thereon,  until  the  same  shall  be  authenticated  to  the  satisfaction 
of  the  said  treasurer  or  paymaster;  but  if  upon  such  examination  and 
inquiry  it  shall  appear  to  the  said  treasurer,  paymaster  or  inspector, 
that  such  will  is  authentic,  the  said  inspector,  or  hiS' assistant,  shall 
sign  his  name  to  such  will,  and  also  pat  a  stamp  thereon  in  token  of 
his  approbation  thereof. 

When  any  petty  officer,  &c.  who  shall  have  belonged  to  any  ship 
or  vessel  of  his  majesty,  his  heirs  or  successors,  has  died,  or  shall 
hereafter  die,  having  left  a  will  or  testament  appointing  any  execu- 
tor or  executors  therein,  no  pay,  &c.  which  may  have  been  due  or 
owing  to  such  testator  at  the  time  of  his  death,  shall  be  paid  over  to 
or  recovered  by  such  executor  or  executors,  except  upon  the  probate 
of  such  will,  to  be  obtained  in  the  following  manner;  videlicet,  after 
such  will  shall  have  been  so  transmitted,  registered,  inspected  and 
approved,  as  hereinbefore  directed,  the  inspector  of  seamen's  wills 
shall  issue,  or  cause  to  be  issued,  to  the  person  named  and  described 
as  executor  or  executrix  of  such  will,  a  check  in  lieu  thereof,  contain- 
ing directions  to  return  the  same,  upon  the  testator's  death,  to  the 
treasurer  or  paymaster  of  his  majesty's  navy;  the  form  of  which 
check  is  set  forth  in  the  act. 

And  in  the  event  of  the  testator's  death,  the  minister,  officiating 
minister,  or  curate  of  the  parish  in  which  the  executor  or  executrix 
may  then  reside,  shall,  upon  being  applied  to  for  his  signature  to  the 
certificate  at  the  foot  of  the  check,  examine  such  executor  or  execu- 
trix, and  such  two  inhabitant  householders  of  the  parish,  as  may  be 
disposed  to  sign  the  first  certificate  on  the  check,  touching  the  claim 
of  the  executor  or  executrix;  and  being  satisfied  of  his  or  her  being 
the  person  described  as  executor  or  executrix  in  the  check,  the  execu- 
tor or  executrix  shall  subscribe  the  a])i)lication  subjoined  to  the  check 
(the  blank  therein  being  first  filled  up  agreeably  to  the  truth),  in  the 
presence  of  the  said  minister,  oificialing  iniiiistcr,  or  curate;  and  the 
said  two  inhabitant  householders  shall  also  subscribe  the  said  first  cer- 
7 


60  OF  THE  PROBATE  OF  THE  [bOOK  I. 

tificatc  on  the  check  (the  blanks  therein  being  first  filled  up  agreeably 
to  tlic  truth)  in  the  like  presence;  for  which  res])ective  purposes  the 
executor  or  executrix,  and  the  householders,  shall  attend  at  such  time 
and  place,  times  and  places,  as  the  minister,  ofllciating  minister,  or 
curate  shall  appoint;  and  the  minister,  ofliciating  minister,  or  curate 
shall  sign  the  second  certificate  on  the  check  (Ihe  blanks  therein,  and 
in  the  description  thereunto  subjoined,  being  fi''st  filled  up  agreeably 
to  the  truth);  and  the  executor  or  executrix  shall,  before  his  or  her 
examination,  or  his  or  her  signing  the  said  application,  pay  to  the 
minister,  officiating  minister,  or  curate,  a  fee  of  two  shillings  and  six 
pence  for  his  trouble  on  the  occasion;  and  the  application  and  certifi- 
cates, being  completed  according  to  the  directions  therein  given,  shall 
be  transmitted  by  the  minister,  ofiiciating  minister,  or  curate,  by  the 
general  post,  addressed  to  the  treasurer  orto  the  paymaster  of  the  navy, 
London;  aod  the  original  will  having  been  stamped  and  passed  in  the 
manner  directed  by  the  act,  the  inspector  of  seamen's  wills,  or  his  as- 
sistant, shall  note  thereon  the  amount  of  wages  due  to  the  deceased, 
as  calculated  pn  the  search  sent  to  the  inspector  from  the  navy  office, 
and  shall  forward  such  will  to  a  proctor  in  Doctors'  Commons,  in 
order  to  his  obtaining  probate  thereof:  And  in  case  the  executor  or 
executrix  shall  not  reside  within  the  bills  of  mortality,  the  inspector 
shall  also  forward  to  such  proctor,  a  letter  addressed  to  the  minister,  in 
the  form  or  to  the  eflect  stated  in  the  act. 

And  such  proctor  having  received  the  will  and  the  letter  so  writ- 
ten by  the  inspector  (in  case  such  letter  shall  be  necessary),  shall  im- 
mediately sue  out  the  previous  commission  or  requisition,  or  take 
such  other  proper  and  legal  steps  as  may  be  necessary  towards  en- 
abling the  executor  or  executrix,  so  applying  for  probate  of  the  will, 
to  obtain  the  same;  and  shall  enclose  in  the  letter  such  previous  com- 
mission or  requisition,  or  other  legal  or  necessary  instrument,  with 
instructions  for  executing  the  same,  and  also  a  copy  of  the  will;  and 
the  letter  and  enclosures  shall  be  forwarded  to  the  minister  by  the 
general  post,  agreeably  to  the  address  put  thereon  by  the  inspector  of 
seamen's  wills. 

The  minister  immediately  upon  the  receipt  of  such  previous  com- 
mission or  requisition,  or  other  instrument,  is  to  take  such  steps  as 
to  him  may  seem  proper  or  necessary  for  procuring  the  execution  of 
such  previous  commission  or  requisition,  or  other  instrument,  direct- 
ed by  the  proctor  employed  in  Doctors'  Commons  to  be  executed, 
and  the  same  being  so  executed,  he  is  to  transmit  the  same  to  the 
treasurer  or  to  the  paymaster  of  his  majesty's  navy,  London;  and  if 
the  person  applying  for  such  probate  of  will,  shall  be  and  reside  at  a 
distance  from  the  place  where  wages,  prize-money,  or  other  allow- 
ances of  money  due  to  the  deceased  are  payable,  he  is  to  specify  and 
describe  tlie  receiver  general  of  the  land  tax,  collector  of  the  customs, 
collector  of  the  excise,  or  clerk  of  the  cheque,  who  may  be  most  con- 
venient or  nearest  to  the  person  applying  for  such  probate;  and  the 
said  treasurer,  paymaster,  or  inspector,  shall,  immediately  upon  re- 
ceipt thereof,  send  the  said  previous  commission  or  requisition,  or 


CHAP.  II.]  #    AVILLS  OF  SEAMEN.  60 64 

other  legal  instrument,  executed  by  the  person  applying  for  the  pro- 
bate as  aforesaid,  to  the  aforesaid  proctor  in  Doctors^  Commons, 
who,  in  pursuance  thereof,  is  forthwith  to  sue  out  and  procure  such 
probate. 

And  if  any  proctor  or  officer  of  the  ecclesiastical  court,  shall  take 
more  for  his  charges  than  the  sums  by  the  act  directed  to  be  taken 
in  the  different  events  therein  specified,  he  shall  forfeit  fifty  pounds; 
or  if  he  shall  be  aiding  or  assisting  in  procuring  probate  of  a  will,  or 
letters  of  administration,  for  the  purpose  of  enabling  any  person  to 
receive  such  wages,  prize-money,  or  allowance  of  money,  otherwise 
than  in  the  manner  prescribed  by  these'  acts,  such  proctor  or  other 
officer  shall  forfeit  five  hundred  pounds,  and  for  ever  after  be  inca- 
pable of  acting  in  any  capacity  in  any  ecclesiastical  court  in  Great 
Britain. 


.  [65]  Sect.  VIII. 
Of  the  probate  under  sj)ecial  circumstances. 

If  the  executor  be  infirm,  or  live  at  a  distance,  it  is  usual  to  grant 
a  commission  or  requisition  to  the  archbishop,  or  bishop,  in  England 
or  Ireland  (as  the  case  may  be),  or  if  in  Scotland,  the  West  Indies, 
or  other  foreign  parts,  to  the  magistrates  or  other  competent  autho- 
rity, to  administer  the  oath  to  be  taken  previous  to  granting  probate 
of  the  will(«).  Otherwise,  if  the  executor  do  not  within  a  reasonable 
time  appear  voluntary,  he  may,  as  1  have  already  mentioned,  pursuant 
to  the  statute  21  H.  S.  c.  5,  \b)  be  cited  by  the  ordinary  ex  officio  to 
prove  or  refuse  the  testament.  In  case  of  non-appearance  on  the 
process,  he  may  be  excommunicated,  and  the  goods  of  the  deceased 
sequestered  until  the  probate(c);  or  administration  with  the  will  an- 
nexed may  be  granted,  in  pain  of  his  contumacy,  provided  an  inti- 
mation to  that  efiect  be  contained  in  the  process. 

But  the  practice  of  issuing  such  citations  is  now  become  obsolete, 
unless  at  the  suit  of  the  parties  interested:  if,  however,  the  [66]  execu- 
tor act,  and  neglect  to  take  probate  within  six  months  after  the  death 
of  the  testator(f/),  by  the  above-mentioned  statute  of  37  G.  3.  c.  90, 
he  incurs  the  penalty  of  fifty  pounds. 

On  the  other  hand,  the  ordinary  is  bound  to  grant  probate  of  the 
will:  and  if  the  executor  accept  the  office,  and  claim  the  probate,  in 
case  of  the  ordinary's  refusal  to  grant  it,  a  writ  of  mandamus  may 
issue  from  the  court  of  King's  Bench  to  compel  him(e):  for  although 
the  spiritual  court  is  to  determine  whether  there  be  a  will  or  not,  yet, 
if  there  be  a  will,  the  executor  has  a  temporal  right,  nor  siiall  any 

(c)  Vide  4  Burn.  Eccl.  L.  208.  {d)  Supr.  43. 

lb)  Supr.  41.  (e)  4  Uurn.  Ecel.  L.204. 

(c)  Vide  i  Burn.  Eccl.  L.  204. 


06  OF  THE  PROBATE  UNDEIB  [bOOK  I. 

terms  be  imposed  on  him  except  such  «is  the  will  prcscribes(/'). 
But  if  the  will  be  litigated,  the  Ijishop  may,  in  his  return  to  the  writ, 
state  that  a  suit  is  depending  bgfore  him  in  regai-d  to  the  same,  and 
not3-et  determined.     And  such  return  will  be  suflicient(^). 

This  jurisdiction  the  metropolitan  or  ordinary  may  exercise  either 
himself,  or  by  his  official;  for  it  is  merely  a  ministerial  act,  and  con- 
cerns him  not  in  his  spiritual  oapacity(A). 

The  power  of  granting  probates  is  not  local,  but  is  annexed  to  the 
person  of  the  archbishop  or  bisliop;  and  therefore  a  bishop,  or  the 
commissary  of  a  bishop,  while  absent  from  his  diocese,  may  [67]. 
grant  probate  of  wills  respecting  property  within  the  same;  or  if  an 
archbishop  or  bishop  of  a  province  or  see  in  Ireland  happen  to  be  in 
England,  he  may  grant  probate  of  wills  relative  to  effects  within  his 
province  or  diocese(/). 

If  the  see  be  vacant,  or  in  case  of  the  suspension  of  the  bishop  or 
arc]il)ishop,  the  dean  and  chapter  are  to  grant  the  probate(^). 

The  proving  of  a  bishop's  will,  although  he  left  goods  only  within 
his  own  jurisdiction,  belongs  to  the  archbishop(/). 

If  there  be  several  executors,  and  one  take  probate,  he  takes  it 
with  a  reservation  to  the  rest.  If  another  apply  for  that  purpose,  an 
engrossment  of  the  original  will  is  to  be  annexed  to  the  second  pro- 
bate in  the  same  manner  as  to  the  first,  and  in  the  second  grant  the 
first  grant  is  to  be  recited.  And  so  of  the  rest.  And  this  is  styled  a 
double  ])robate(7;«). 

Where  several  executors  are  appointed,  as  formerly  mentioned(n), 
with  separate  and  distinct  powers,  yet,  as  there  is  but  one  will,  one 
probate  shall  be  sufficient(o). 

[68]  Where  probate  of  the  will  of  a  married  woman  is  granted  to 
her  executor,  if  he  be  not  her  husband,  it  is  limited  to  the  property 
over  which  she  had  a  disposing  power:  and  the  instrument  from 
which  such  power  is  derived  must  be  produced;  unless  the  husband, 
either  in  person  or  by  proxy,  consent  to  a  general  probate's  being 
granted  to  her  executor. 

If  a  will  be  limited  to  any  specific  efiects  of  a  testator,  the  pro- 
bate shall  also  be  limited,  and  an  administration  cseteroriim  granted. 

The  interest  vested  by  the  will  of  the  deceased  in  the  executor 
may,  if  he  take  out  probate^  be  continued  and  kept  alive  by  the  will 
of  the  same  executor,  so  that  the  executor  of  A.  's  executor  is  to  all 
intents  and  purposes  the  executor  and  representative  of  A.  himself(/?), 

(/)  Rax  V.  Raines,  Ld.  Raym.  361.  Case,  Lutw.  30. 
Marriott  v.  ^larriott,  Stra.  672.  (/)  1 1  Vin.  Abr.  74.     4  Inst.  335. 

{<^)  Sir  Richd.  Raine's  Case,  Lord  Supr.  53. 
Raym.  202.     Rex  v.  Hay,  Burr.  2295.  (w)  4  Burn.  Eccl.  L.  201. 

4  Burn.  Eccl.  Law,  205.  («)  Vid.  supr.  36. 

(A)  3  Bac.  Abr.  39.     Archbishop  of         (o)  3  Bac.  Abr.  30.     Off.  Ex.  13. 
Canterbury  V.  House,  Cowp.  140.  (/>)  2  Bl.  Com.  500.     Com.  Dig. 

(0  3  Bac.  Abr.  39.     11  Vin.  Abr.  Admon.B.G.  11  Vin.  Abr.  63.  90.  107. 

78.     Cro.  Car.  53.  Off.    Ex.   Suppl.    140.      Plow.    525. 

{k)  3  Bac.  Abr.  39.    Roll.  Abr.  908.  Shep.  Touch.  464. 
II  Vin.  Abr.  74,  75.  77.     Young  v. 


CHAP.  II.]  SPECIAL  CIRCUMSTANCES.  68 

and  may  bedirectly  so  named  in  legal  proceedings(y).  For  the  power 
of  an  executor  is  founded  on  the  special  confidence  and  actual  ap- 
pointment of  the  deceased.  vSuch  executor,  therefore,  may  transmit 
that  power  to  another  in  whom  he  has  equal  confidence.  And,  so 
long  as  the  chain  of  representation  is  unbroken  by  any  intestacy,  the 
ultimate  executor  is  the  representative  of  every  preceding  testator,in 
however  numerous  a  succession.  Nor  is  a  [69]  new  probate  of  the 
original  will  in  any  of  the  subsequent  stages  requisite(r). 

If  there  be  several  co-executors,  and  they  all  prove,  the  interest 
goes  only  to  the  executor  of  the  last  survivor;  and  although  such  sur- 
vivor refused  to  prove  in  the  lifetime  of  the  other  executors,  he  may 
take  out  probate  after  their  death;  and  in  that  case  the  interest  will  be 
equally  transmitted  to  his  executor.  But  if  such  surviving  executor 
renounce  after  their  death,  administration  shall  be  granted,  and  then 
his  executor  will  have  no  title  to  the  original  executorship(5). 

If  A.  appoint  B.  and  C.  his  executors,  and  die,  and  B.  make  J.  S. 
his  executor,  and  die,  and  afterwards  C.  dies  intestate;  the  executor 
of  B.  shall  not  be  the  executor  of  A.,  because  the  executorship  vested 
solely  in  C.  as  survivor;  and  as  he  died  intestatCj  administration  must 
be  taken  out  to  A.(/). 

Wills  which  concern  the  personal  estate  only,  are  subject  to  the 
jurisdiction  of  the  ecclesiastical  courts(t<). 

Where  the  will  respects  lands  merely,  the  spiritual  court  ought  [70] 
not  to  grant  probate;  and  if  there  be  a  suit  to  compel  it,  a  pi'ohibition 
will  lie(y). 

But  when  the  will  is  of  a  mixed  nature,  that  is,  relates  both  to 
real  and  jDersonal  property,  the  probate  of  it  shall  be  entire  in  the 
spiritual  court(^^;). 

A  will  may  be  proved  with  a  reservation  as  to  a  particular  lega- 
cy. And  in  such  case,  if  there  be  a  decree  against  such  legacy  as  a 
forgery  or  interpolation  in  the  ecclesiastical  court,  the  will  shall  be 
engrossed  without  it,  and  so  annexed  to  the  probate(a:). 

The  will  of  a  party  who  has  been  long  absent  from  this  country 
may  be  proved,  if  he  be  generally  understood  to  be  dead,  and  the 
executor  will  take  upon  himself  to  swear  that  he  believes  him  to  be 
so(y). 

If  the  executor  named  in  the  will  be  unknown  or  concealed,  ad- 
ministration may,  after  due  process,  be  granted  till  he  appear  and 
claim  the  probate(z). 

(y)  Com.  Dig.  Admon.  G.  1.    Pow-  Bret,  Cro.  Car.  396.     Habergham  v. 

ley  and  Sear's  Case,  Leon.  275.  Vincent,  2  Ves.  jun.  230. 

(r)  Wankfordv.  Wankford,  1  Salk.  (w)  Nctter  v.  Bret,  Cro.  Car.  396. 

309.  11  Vin,  Abr.  57.60.  117.    Partridge's 

CO  II  Vin.  Abr.  68,  69.  114.  Wank-  Case,  2  Salk.  552.     3  Salk.  22. 

ford  V.  Wankford,  1  Salk.  307.  House  (x)  1  Burn.  Eccl.  L.  209.    Plume  V. 

V.  Lord  Petre,  311.     Pawletv.  Freak,  Beale,  1  P.  Wms.  388. 

Hard.  111.     Com.  Dig.  Admon.  B.  1.  (y)   Off.    Ex.  Supp.    63.      Swinb. 

(0  U  Vin.  Abr.  88.     Off.  Ex.  101.  part  6.  s.  13. 

(w)  4  Burn.  Eccl.  L.  195.  (z)  4  Burn.  Eccl.  "L.  202.     Roll. 

(v)  4  Burn.  Eccl.  L.  195.    Netter  v.  Abr.  907,  and  vide  infr. 


71  OF  TTIE  PROBATE,  6iC»  [rOOK  I. 

[71]  If  the  will  be  lost,  two  witnesses,  superior  to  all  exception, 
who  read  the  will,  jirovc  its  existence  after  the  testator's  death,  re- 
member its  contents,  and  depose  to  its  tenor,  are  sufficient  to  estab- 
lish it(«). 

So,  where  the  testator  had  delivered  his  will  to  A.  to  keep  for 
him,  and  four  years  afterwards  died,  when  the  will  was  found  gnawn 
to  pieces  by  rats,  and  in  part  illegible;  on  proof  of  the  substance  of 
the  will  by  the  joining  of  the  pieces,  and  the  memory  of  witnesses, 
the  probate  was  granted(Z»). 

A  will  is  to  be  construed  by  the  court  without  regard  to  the  in- 
structions given  for  preparing  it(c). 

If  the  testator  resided  in  Scotland,  and  left  effects  there  and  in 
England,  the  will  is  proved  in  the  first  instance  in  the  court  of  great 
sessions  in  Scotland,  and  a  copy  duly  authenticated  being  transmit- 
ted hither,  it  is  proved  in  the  prerogative  court,  and  deposited  as  if  it 
were  an  original  will. 

So  in  such  case,  if  the  testator  resided  in  Ireland,  the  will  is  proved 
in  the  spiritual  court  of  that  country;  or  if  in  the  East  or  West  In- 
dies, in  the  probate  court  there,  and  a  copy  transmitted,  proved,  and 
deposited  in  the  same  manner. 

Where  the  testator  was  resident  in  England,  not  merely  as  a  vis- 
itor, and  has  left  property  in  the  plantations,  the  judge  of  probate 
[72]  in  the  plantations  is  bound  by  a  grant  of  probate  by  the  pre- 
rogative court  here,  and  ought  to  make  a  similar  grant  to  such 
grantee  (^/). 

If  a  will  be  made  in  a  foreign  country,  disposing  of  goods  in 
England,  it  must  be  proved  here(e).(l)  But  if  the  effects  were  all 
abroad,  and  the  will  be  proved  according  to  the  custom  of  the  coun- 
try where  the  testator  died,  it  is  sufficient.  And  the  executor  may 
plead  such  matter  to  a  bill  filed  against  him  by  the  administrator, 
for  an  account  of  the  deceased's  personal  estate(/). 

If  a  will  be  in  a  foreign  language,  the  probate  is  granted  of  a  trans- 
lation of  the  same  by  a  notary  public. 

(a)  4  Burn.  Eccl.  L.  200.  (d)  Burn  v.  Cole,  Arab.  415. 

(b)  Off.    Ex.   Supp.  215.     7  Bac.  (e)  11   Vin.  Abr.  58.     Vid.  infr. 
Abr.  320,  in  note.                                           ( /)  11  Vin.  Abr.  59.  G9.     Jauncy 

\c)  Murray  v.  Jones,  2  Ves.  &  Bea.     v.  Sealey,  1  Vern.  397. 
318. 


(1)  Sec  a7iie,  page  2,  note  (2).    See  Crofton  v.  Iklei/,  4  Greenl.  Rep.  134.    TrecotMck 
V.  Austin,  4  Mason's  Rep.  16. 


CHAP.  II.]  OF  APPEALS.  72 

Sect.  IX. 
Of  caveats  J  revocation  of  probates,  dnd  ajypeals. 

When  the  will  is  opposed,  it  is  the  practice  to  enter  a  caveat  in 
the  spiritual  court  to  prevent  the  prohatc.  And  it  is  said  that,  by 
the  rules  of  that  court,  the  caveat  shall  stand  in  force  for  three 
months,  and  that,  while  it  is  pending,  probate  cannot  be  granted; 
[73]  but  whether  the  law  recognizes  a  caveat  and  allows  it  so  to 
operate,  or  whether  it  does  not  regard  it  as  a  mere  cautionary  act  by 
a  stranger  to  prevent  the  ordinary  from  committing  a  wrong,  is  a 
point  on  which  the  judges  of  the  temporal  courts  have  differed(^). 

Probate  of  a  will  is  suspended  by  appeal,(l)  but  it  cannot  be 
stayed  at  the  suit  of  a  creditor,  till  a  commission  of  appraisement 
issued  be  returned(A);  for  by  the  statute  21  i:/]  8.  c.  5,  the  probate 
is  to  be  granted  with  convenient  speed,  without  any  frustratory 
delay. 

If  a  probate  have  been  granted  by  the  wrong  jurisdiction,  it  is 
cause  of  reversal,  or. nullity,  according  to  the  distinction  before 
stated  (z). 

So  if  the  will  be  fraudulently  proved,  either  in  the  common  form, 
that  is  to  say,  by  the  oath  of  the  executor,  or  more  solemnly  by  the 
examination  of  witnesses,  on  such  fraud  being  shown,  the  spiritual 
court  will  revoke  the  probate.  So  also  it  may  be  vacated  on  proof 
of  a  revocation  of  the  will  on  which  it  was  granted,  or  of  the  mak- 
ing of  one  subsequent(A;).  And  where  probate  has  been  granted 
of  the  will  of  a  person  supposed  to  be  deceased,  upon  application 
to  the  executor  by  motion,  the  judge  will  by  interlocutory  decree 
revoke  the  probate  so  granted  in  error,  and  upon  petition  of  the 
party  will  decree  the  will  and  cancelled  probate  to  be  delivered  out 
tohim(/). 

An  appeal (7?i)  in  regard  to  probates,  by  statute  24  H.  8.  c.  12, 
[74]  lies  from  the  court  of  the  archdeacon,  or  his  official  (if  the 
matter  be  there  commenced),  to  the  bishop  of  the  diocese;  and  by 
virtue  of  the  same  statute,  from  the  bishop  diocesan,  or  his  commis- 
sary, to  the  archbishop  of  the  province,  within  fifteen  days  next  after 
sentence.  When  the  cause  is  commenced  before  the  archdeacon  of 
the  archbishop,  or  his  commissary,  by  the  same  statute  there  may  be 

(/?•)  3  Bac.  Abr.  41.    Offlcy  v.  Best,         {I)  Off.  Ex.  48.     Vid.  supr.  53. 
1  Lev.  186.  Ik)  Ibid.  48. 

(A)  11  Vin.  Abr.  G3.   4  Burn.  Eccl.  (/)  In  re  Charles  James  Napier,  1 

L.  230.     Rex  v.  Bettesworth,   Stra.  Phill.  Rep.  83. 
857.  (/«.)  Cora.  Dig.  Prerogative. 

(1)4  Mason's  Kc'i).  25. 


74  OF  APPEALS.  [book  1. 

an  appeal  within  the  same  period  to  the  court  of  arches  or  audience 
of  the  archbishop;  and  from  the  court  of  arches  or  audience,  within 
fifteen  days  next  after  sentence  given  to  tlie  archbishop  himself;  and 
in  case  the  king  himself  be  a  party  in  such  suits,  the  appeal  shall  be, . 
within  fifteen  days  next  after  sentence  given  to  all  the  bishops  of 
the  realm,  in  the  upper  house  of  convocation  assembled.  By  that 
statute,  and  also  by  statute  25  H.  8.  c.  19,  appeals  to  the  pope  are 
prohibited,  and  by  the  latter  statute  are  given  from  the  archbishop's 
court  to  the  king  in  chancery,"  where  a  commission  shall  be  awarded 
under  the  great  seal,  to  certain  persons  to  be  named  by  the  king  for 
the  determination  of  the  appeals;  and  those  commissioners  are  called 
delegates,  inasmuch  as  they  are  delegated  by  the  king's  commis^on. 
And  further,  although  this  last  cited  statute  declares  the  sentence  of 
the  delegates  definitive,  the  king,  on  complaint,  to  him  made,  may 
grant  a  commission  of  review  to  revise  the  sentence  of  the  dele- 
gates(w);  because  the  pope,  as  supreme  head  by  the  canon  law,  used 
to  grant  [75]  such  commission;  and  such  authority,  as  the  pope 
heretofore  exercised,  is  now  annexed  to  the  crown  by  statute  26 
H.  8.  c.  1,  and  1  Eliz.  c.  1.  But  it  is  not  matter  of  right,  which  the 
subject  may  demand  ex  d'ehiio  jusiUiie,  but  merely  a  matter  of  fa- 
vour, which  is  never  granted  but  under  special  circumstances(o). 

Before  revocation  of  a  probate,  the  court  will  not  grant  a  new 
onc{p). 

Where  probate  granted  by  the  special  court  is  affirmed  on  an  ap- 
peal to  the  arches  or  delegates,  the  usage  is  to  send  the  cause  back. 
But  when  the  first  sentence  is  reversed,  the  court  below  ■shall  be 
ousted  of  its  jurisdiction,  and  the  court  which  reverses  it  shall  grant 
probate  dc  novo{q). 


Sect.  X. 

The  effect  of  a  probate. — Loss  of  the  smne. —  What  is  evidence 
of  probate. — Effect  of  its  revocation. 

The  probate  thus  passed,  although  it  does  not  confer,  yet  authen- 
ticates the  right  of  the  executor,  for  courts  of  law  or  equity  take  no 
judicial  notice  of  any  executor  until  he  has  proved  the  will.  But  it 
shall  have  relation  to  the  time  of  the  testator's  death(?'). 

[76]  If  the  will  be  proved  in  common  form,  it  may  at  any  time 

(?0  Off.  Ex.  Suppl.  127.  129.     3  Admon.  B.  2.     2  Roll.  Abr.  233. 

Bl.  Com.  64—67.  (?•)  11  Vin.  Abr.  205.     Off.  Ex.  49. 

{<>')  3  Bl.  Com.  67.     Matthews  v.  Henslor's  Case,  9  Co.  38.     Comber's 

Warner,  4  Ves.  jun.  205.  Case,   1    P.   Wms.  767.     Hudson  v. 

(;))  4  Burn,  Eccl.  L.  193.     Rains  Hudson,  1    Atk.  461.     Ca.  in  Ch;  2 

V.  Com.  of  Dioe.  of  Canterb.,  7  Mod.  pi.  56.     Smith  v.  Milles,  1  T.  Rep. 

146.  480.     Rex  v.  Netherseal,  4  T.  Rep. 

(y)  11  Vin.  Abr.  76.     Com.  Dig.  260. 


CHAP.  II.]  EFFECT  OF  A  PROBATE.  76 

within  thirty  years  be  disputed;  if  in  the  more  formal  mode,  and  all 
persons  interested  are  made  parties  to  the  suit,  and  there  be  no  pro- 
ceedings within  the  time  limited  for  appeals,  it  is  liable  to  no  future 
controversy  (5). 

So  long  as  the  probate  remains  unrevoked,  tlie  seal  of  the  ordinary 
cannot  be  contradicted,  for  the  temporal  court  cannot  pass  a  judg- 
ment respecting  a  will  in  opposition 'to  that  of  the  ecclesiastical 
court(^);  and  therefore  if  a  probate  under  seal  be  shown,  evidence 
will  not  be  admitted  that  the  will  was  forged,  or  that  the  execution 
of  it  was  procured  by  fraud,  or  that  the  testator  was  non  compos 
mentis,  or  that  another  person  was  executor;  for  these  are  points 
which  are  exclusively  of  spiritual  cognizance;  but  it  may  be  shown 
that  the  seal  was  forged,  or  that  there  were  bona  notabilia,  for 
such  evidence  is  no  contradiction  to  the  seal,  but  admits,  and  avoids 
it(w). 

,  Such  then  being  the  nature  of  a  probate,  inasmuch  as  it  is  a  judi- 
cial act  of  the  court  having  competent  authority;  and  is  conclusive 
till  it  be  repealed,  -and  a  court  of  common  law  cannot  admit  evidence 
to  impeach  it;  it  was 'determined  in  a  recent  case,  in  oppo[77]sition 
to  some  old  decisions(z?),  that  payment  of  money  to  an  executor  who 
had  obtained  probate  of  a  forged  will,  was  a  discharge  to  the  debtor 
of  the  intestate,  although  the  probate  were  afterwards  revoked,  and 
administration  granted  to  the  next  of  kin(^^7).(l) 

And  on  the  same  principle  it  is  holden,  that  pending  a  suit  in  the 
spiritual  court  respecting  the  validity  of  a  will,  an  indictment  for 
forging  it  ought  not  to  be  tried;  and  it  is  the  practice  to  postpone 
the  trial  till  that  court  has  given  sentence(a'). 

But  a  payment  of  money  under  probate  of  a  supposed  will  of  a 
living  person  would  be  void,  because  in  such  case  the  ecclesiastical 
court  has  no  jurisdiction:  and  the  probate  can  have  no  effect. (2) 
The  power  of  the  ordinary  extends  only  to  the  proving  of  wills  of 
persons  deceased(y). 

Where  the  probate  is  lost,  the  spiritual  court  never  grants  a  se- 
cond, but  merely  an  exemplification  of  the  probate  from  its  own 
records,  and  such  exemplification  is  evidence  of  the  will  having  been 
proved(2'). 

The  copy  of  the  probate  of  a  will  of  a  personal  property  is  cvi- 

(*)  4  Burn.  Eccl.  L.  207.    Godolph.  {to)  Allen  v.  Dundas,  3  Terra  Rep. 

62.  125. 

(0  House  V.  Lord   Petre,  1   Salk.  {x)  3  Bac.  Abr.  34.     Rex  v.  Vin- 

311.     Griffiths  v.  Hamilton,  12  Vcs.  cent,  1  Stra.  481.     Rex  v.  Rhodes,  2 

jun.  298.     Sec  also  1   P.  VVms.  388.  Stra.  703. 

548,  in  note.  («/)  Allen  v.  Dundas,  3  Term  Rep. 

(m)   Marriott  v.  Marriott,  Stra.  671,  130. 

672.     4  Burn.  Eccl.  L.  196.  (z)    Shepherd  v.  Shorthose,   Stra. 

{v)  1  Roll.  Abr.  919.     Anori.  Com.  412.     4  Burn.  Eccl.  L.  219. 
Rep.  152.     Vid.  11  Vin.  Abr.  89. 


(1)15  Serg.  H  Kawlc,  42.  (2)  15  Serf,  iic  Kawlc,  42,  contm. 

S 


78  EVIDENCE  OF  A  PROBATE.  [bOOK  I. 

[78]clence,  inasmuch  as  the  probate  is  an  original  taken  by  authority, 
and  of  a  public  naturc(a). 

The  register's  book,  or,  as  it  is  sometimes  styled,  the  ledger-book, 
in  the  spiritual  court,  is  evidence  that  there  Was  such  will,  in  case  of 
its  being  lost(Z'). 

A  copy  of  the  ledger-book  seems  also  to  be  sufficient  proof  for 
the  same  purpose;  since  such  book  is  a  roll  of  the  court,  and  there- 
fore a  copy  of  it  is  not  a  copy  of  a  copy,  as  hath  been  erroneously 
supposed(c). 

If  issue  be  taken  on  a  probate  of  a  will,  it  shall  be  tried  by  a 

The  probate,  or,  as  it  is  sometimes  called,  the  letters  testamentary, 
may  be  revoked  cither  on  a  suit  by  citation,  or  on  appeal  to  reverse 
a  sentence  by  which  they  are  granted;  and,  in  case  of  revocation, 
all  the  intermediate  acts  of  the  executors  shall  be  void.(l) 

But  where  a  widow  possessed  herself  of  the  personal  estate  as, 
executrix  under  a  revoked  will,  and  paid  debts  and  legacies  with- 
[79]out  notice  of  the  revocation,  she  was  allowed  those  payments 
in  equity;  but  leases  which  she  had  granted  \fere  ordered  to  be  set 
asid€(e). 

Where  B.,  a  married  woman,  who  was  the  sole  executrix  of  fier 
late  husband  A.,  made  a  will  merely  executing  a  power  given  to 
her  by  a  marriage  settlement,  but  appointed  C.  executrix  generally, 
and  the  ecclesiastical  court  granted  probate  of  her  will  in  the  gene- 
ral iorm-,  it  was  held,  that  the  general  probate  of  the  will  of  B. 
transmitted  to  C.  the  representation  of  A.  without  an  administration 
be  bonis  non{J). 

(a)  3  Salk.  154.     Hoe  v.  Nathorpe,  {d)  Off.  Ex.  Suppl.  9.    Case  of  Ab- 

Ld.  Raym.  154.     Law  of  Ni.  Pri.  245,  bot  of  Strata,  9  Co.  Rep.  31. 

246.     4  Burn.  Eccl.  L.  219.  (e)  3  Bac.  Abr.  50.     1  Chan.  Ca. 

{b)  4  Burn.  Eccl.  L.  218.     St.  Le-  126. 

gar  V.  Adams,  Lord  Raym.  731.  (/)  Barr  v.  Carter,  2  Cox's  Rep. 

(c)  Law  of  Ni.  Pri.  246.  429. 


(1)  Contra,  Appeal  of  i?.  Peebles,  15  Serg.  &  Rawle,39,  where  the  doctrine  in  the  text 
is  denied.  See  Ford  v.  Gardner,  1  Hen.  h  Munf.  72,  as  to  the  right  in  Virginia  of  any- 
one having  an  interest,  and  who  did  not  appear  to  contest  it  before  the  ordinary,  to  im- 
pugn, within  seven  years,  the  validity-  of  a  probate  by  bill  in  equitj'.  Appearance  and 
contesting  the  probate  will  not  bar  the  "right  to  file  a  bill,  if  there  be  any  ground  of  fraud 
unknown  to  tlie  party  at  the  time  of  the  probate.     Ibid. 


80 


CHAP.  HI.]  OF  GRANTING  ADMINISTRATION. 


[80]  CHAPTER  III. 


OP  THE  JVPPOINTMENT  OF  ADMINISTRATORS. 


Sect.  I. 

Of  general  administrations, — origin  thereof, — who  entitled. — 
Of  consanguinity. 

In  case  a  party  makes  no  testamentary  disposition  of  his  personal 
property,  he  is  said  to  die  intestate(o);  the  consequences  of  which 
are  now  to  be  considered. 

In  ancient  times  the  king  was,  on  such  event,  entitled  to  take 
possession,  by  his  officers,  of  the  effects,  as  the  jiarens  patrise,  and 
general  trustee  of  the  kingdom,  in  order  that  they  might  be  applied 
in  the  burial  of  the  deceased,  in  the  payment  of  his  debts,  and  in  a 
provision  for  his  wife  and  children;  or  if  none,  then  for  his  next 
of  kin(6).  This  prerogative  was  most  probably  exercised  in  the 
county  court;  it  was  also  delegated  as  a  franchise  to  many  lords  of 
manors  and  others,  who  have  to  this  day  a  prescriptive  right  to 
grant  administration  to  their  intestate  tenants  and  suitors  in  their 
own  courts  baron  and  other  courts,  or  as  we  have  seen(c),  to  grant 
[81]  probate  of  their  wills,  in  case  they  have  made  any  disposition(fl?). 

This  power  was  afterwards  vested  by  the  crown  in  the  prelates, 
who,  on  a  notion  of  their  superior  sanctity,  were,  by  the  supersti- 
tion of  the  times,  conceived  capable  of  disposing  of  the  property 
most  for  the  benefit  of  the  deceased's  soul(e).  The  effects  were 
therefore  committed  to  the  ordinary,  and  he  might  seize  and  keep 
them  without  wasting,  and  after  the  partes  rationabiles,  or  two 
thirds  belonging  to  the  wife  and  children  were  deducted(/),  might 
give,  alien,  or  sell  the  remainder  at  his  pleasure,  and  dispose  of  the 
money  in  pious  uses.  If  he  did  otherwise,  he  violated  the  trust  re- 
posed in  him  as  the  king's  almoner  within  his  diocese(^§-).  The 
jurisdiction  of  proving  wills  of  course  fell  into  the  same  channel, 
since  it  was  thought  reasonal^le  that  they  should  be  proved  to  the 
satisfaction  of  him  whose  right  of  distribution  they  cilcctually  su- 
perseded(/i). 

But  his  conduct  did  not  justify  the  prcsumptioo  which  had  been 

(a)  2  Bl.  Com.  494.  0  Co.  38  b. 

{b)  2  Bl.  Corn.  494.     9  Co.  38  b.  (/)  2  Bl.  Com.  491.  495.  51G.     2 

(c)  Vid.  supr.  50.  Inst.  33. 

Id)  2  Bl.  Com.  494.     9  Co.  37  1).  {g)  Plowd.  277. 

(e)  Perkins,  sect.  486.     Plowd.  277.  (//)  2  Bl.  Com.  494. 


81  OF  GRANTING  ADMINISTRATION.  [bOOK  I. 

thus  formed  in  his  favour.  The  trust  so  confided  to  him,  he  did  not 
very  faithfully  cxccutc(/).  He  converted  to  his  own  use,  under  the 
name  of  church  and  poor,  the  whole  of  such  residue,  [82]  without 
even  paying  the  deceased's  dehts.  To  redress  such  palpahlc  injust- 
ice, the  statute  of  Westminster  2,  or  the  13  E.  1.  e.  19,  was  passed; 
hy  which  it  is  enacted,  that  the  ordinary  is  hound  to  pay  the  dehts  . 
of  the  intestate,  so  far  as  his  goods  will  extend,  in  the  same  manner 
as  executors  are  hound,  in  case  the  deceased  haH  left  a  will;  an  use, 
as  Mr.  Justice  Blackstone  styled  it,  more  truly  pious  than  any  re- 
quium,  or  mass  for  his  sou^A*). 

Although  the  ordinary  were  now  become  liable  to  the  intestate's 
creditors,  yet  the  residue,  after  payment  of  debts,  continued  in  his 
hands,  to  be  applied  to  whatever  purposes  his  conscience  might  ap- 
prove. But  as  he  was  not  sulHciently  scrupulous  to  prevent  the 
perpetual  misapplication  of  the  fund,  the  legislature  again  inter- 
posed, iii  order  to  divest  him  and  his  dependents  of  the  administra- 
tion. The  Stat.  31  E.  B.C.  11,  therefore  prpvides,  that  in  case  of 
intestacy,  the  ordinary  shall  depute  the  nearest  and  most  lawful 
friends  of  the  deceased  to  administer  his  goods,  and  they  are  there- 
by put  on  the  same  footing  in  regard  to  suits;  and  to  accounting,  as 
executors  appointed  by  will(/). 

Such  is  the  origin  of  administrators.  They  are  the  officers  of  the 
ordinary,  appointed  by  him  in  pursuance  of  the  statute,  which  selects 
the  next  and  most  lawful  friends  of  the  intestate.  But  the  [83]  stat 
21  H.  8.  c.  5,(1)  allows  the  ecclesiastical  judge  a  little  more  latitude, 
and  empowers  him  to  grant  administration  either  to  the  widow  or 
next  of  Idn,  or  to  both  of  them,  at  his  own  discretion;  and  where 
two  or  more  persons  are  in  the  same  degree  of  kindred,  in  case  they 
apply,  gives  him  his  election  to  accept  whichever  he  pleases.(2) 

{{)  2  Bl.  Corn.  491.  495.  (Z)  2  Bl.  Cora.  495,  49G.     3  Bac. 

Ik)  Ibid.  495.  Abr.  54.     Raym.  498. 


(1)  That  part  of  this  statute  only  was  reported  as  in  force  (in  Pennsylvania)  which  re- 
lates to  the  persons  to  whom  administration  is  granted.  Report  of  the  Judges,  3  Binn. 
618.  Roberts'  Dig.  Brit.  Statutes,  254.  But  it  seems  no  longer  in  force  since  tlie  pass- 
age of  the  act  of  15th  March,  1832,  "  relating  to  Registers  and  Register's  coui-ts. "  (Pamph. 
Laws,  135.) 

(2)  In  Pennsylvania,  by  the  provisions  of  the  24th  section  of  the  act  of  15th  March  1 832, 
entitled  "An  act  relating  to  Registers  andllegister's  coui  ts,"  (Paraph. Laws,  135,)  "  it  shall 
be  tlie  duty  of  eyevy  register,  upon  his  granting  letters  of  administration  of  tlie  goods  and 
chattels  of  any  persons  dying  intestate,  to  take  a  bond  or  bonds  with  two  or  more  sufficient 
sureties,  respect  being  had  to  the  value  of  the  estate,  in  the  name  of  the  commonwealth, 
with  a  condition  in  the  following  form,  viz. — '  The  condition  of  this  obligation  is  such, 
that  if  the  widiin  bounden  A.  B.  administrator  of  all  and  singular  the  goods,  chattels  and 
credits  of  C.  D.  deceased,  do  make,  or  cause  to  be  made,  a  true  and  perfect  inventory  of 
all  and  singular  the  goods,  chattels  and  credits  of  the  said  deceased,  which  have  or  shall 
come  to  the  hands,  possession  or  knowledge  of  him  the  said  A.  B.  or  into  the  hands  and 
possession  of  any  other  person  or  persons  for  him,  and  the  same  so  made,  do  exhibit  or 

cause  to  be  exhibited,  into  the  register's  office  in  the  county  of ,  within  thirty  days 

from  the  date  hereof,  and  the  same  goods,  chattels  and  credits,  and  all  other  the  goods. 


CHAP.  III.]  OF  GRANTING  ADMINISTRATION.  "  83 

Letters  of  administration,  then,  must  be  granted  by  .the  ordinary 
to  such  persons,  as  the  statutes  31  E.  3.  &  21  H.  S.  point  out(m); 
that  is,  according  to.  the  former  statute,  to  the  next  and  most  lawful 
friends  of  the  intestate;  /iccording  to  the  latter,  to  the  widow,  and 
next  of  kin,  or  both,  or  either  of  them. 

What  parties  fall  within  the  first  description,  it  was  the  province 
of  the  courts  of  common  law  to  determine(?2);  and  they  have  inter- 
preted such  friends  to  mean  in  the  first  place  the  husband,  if  he  were 
not  entitled  at  common  law,  and  secondly,  the  next  of  blood,  under 
no  legal  disabilities(o). 

First,  the  ordinary  is  bound  to  grant  administration  of  the  effects 
of  the  wife  to  the  husband(/?).(l) 

Various  opinions  have  indeed  been  held  with  regard  to  the  hus- 
band's title  to  administer.  Some  have  maintained  that  he  has  no 
[84]  such  exclusive  right,  either  at  common  law,  or  by  virtue  of  the 
statutes;  but  that  the  ordinary  may  refuse  the  administration  to 
him;  and  may  elect  to  grant  it  to  the  next  of  kin  of  the  wife(§'). 

(m)  2  Bl.  Com.  504.  (/?)  11  Vin.  Abr.  86.    Blackborough 

In)  3  Bac.  Abr.  54.     11  Vin.  Abr.  v.  Davis,  1  P.  Wms.  44. 

93.     Thomas  v.  Butler,  1  Ventr.  218.  {q)  Johns  v.  Rowe,  Cro.  Car.  106. 
(o)  2  Bl.  Com,  496.     9  Co.  39  b. 


chattels  and  ci'edits  of  the  said  deceased  at  the  time  of  his  dcatli,  which  at  any  time  after 
shall  come  to  the  hands  or  possession  of  the  said  A.  B.  or  into  the  hands  and  possession  of 
any  other  person  or  persons  for  him,  do  well  and  truly  administer,  according  to  law, 
and  fm-ther,  do  make  or  cause  to  be  made,  a  true  and  just  account  of  his  said  administra- 
tion, within  one  year  from  the  date  hereof,  or  when  thereunto  legally  required,  and  all 
the  rest  and  residue  of  the  said  goods,  chattels  and  credits,  which  shall  be  found  remain- 
ing upon  the  said  administrator's  account,  the  same  being  first  examined  and  allowed  of 
by  the  orphan's  court  of  the  county  having  jurisdiction,  shall  deliver  and  pay  unto  such 
person  or  persons  respectively,  as  the  said  orphan's  court,  by  their  decree  or  sentence, 
pursuant  to  law,  shall  limit  and  appoint;  and  shall  well  and  truly  comply  with  the  laws 
of  this  commonwealth  relating  to  collateral  inheritances;  and  if  it  shall  hereafter  appear 
that  any  last  will  and  testament  was  made  by  the  said  deceased,  if  the  said  A.  B.  within 
bounden,  being  thereunto  required,  do  render  and  deliver  the  said  letters  of  administra- 
tion into  the  said  register's  office,  then  this  obligation  to  be  void,  otherwise  to  remain  in 
full  force  and  virtue. 

" '  Provided,  that  in  every  case  of  special  administration,  the  form  of  the  foregoing  con- 
dition shall  be  modified  so  as  to  suit  the  circumstances  of  such  case.'  " 

(1) '^Whenever  letters  of  administration  are  by  law  necessary,  theregister  having  juris- 
diction shall  grant  them,  in  such  form  as  the  case  shall  require,  to  the  widow,  if  any,  of 
the  decedent,  or  to  such  of  his  relations  or  kindred  as  by  law  may  be  entitled  to  the 
residue  of  his  personal  estate,  or  to  a  sliare  or  shares  therein  after  payment  of  his  debts; 
or  he  may  join  with  the  widow  in  such  administration,  such  relation  or  kindred,  or  such 
one  or  more  of  them,  as  he  shall  judge  will  best  administer  the  estate,  preferring  always, 
oCtliose  so  entiUed,  such  as  are  in  the  nearest  degree  of  consanguinity  with  the  decedent, 
and.also  preferring  males  to  females;  and  in  case  of  the  refusal  or  incompetency  of  every 
such  person,  to  one  or  more  of  the  principal  creditors  of  the  decedent  applying  therefor, 
or  to  any  fit  person  at  his  discretion:  Provided,  tliat  if  such  decedent  were  a  married 
woman,  her  husl)and  shall  be  entitled  to  tlic  administration  in  preference  to  all  other 
persons.    Act  of  March  15th  1832,  Sect.  22."  (Pamph.  Laws,  140.) 


84  '  OF  GRANTING  ADMINISTRATION.  [bOOK  I. 

By  others  it  has  been  asserted,  that  he  is  entitled  under  the  equity 
of  tlic  Stat,  of  the  21  II.  8.  whereby  the  ordinary  is  directed  to  grant 
administration  of  the  husband's  effects  to  the  wife,  or  next  of  kin, 
or  to  either(r).  By  a  third  class,  it  has  boen  insisted,  that  although 
the  husband  have  not  been  expressly  named  in  the  stat.  31  E.  3.  nor 
does  he  answer  the  description  of  next  of  kin  to  the  wife,  yet  he  is 
included  under  the  denomination  of  tlic  next  and  most  lawful  friend 
of  the  intestate;  and  that  thus  he  supports  his  claim,  not  on  the  com- 
mon law,  nor,  as  described  eo  nomiiie,  by  the  statute,  but  as  compre- 
hended within  its  general  provision(.?).  By  a  fourth,  it  is  alleged, 
and  the  doctrine  is  recognized,  in  a  recent  case,  by  Lord  ]x)ugh- 
borough,  C.(/),  that  he  is  entitled  at  common  law,  Jure  mariti,  and 
that  his  right  is  not  derived  from  any  of  the  statutes,  but,  on  the 
contrary,  is  supposed  by  them,  and  exists  independently  of  them  all. 
However,  to  speculate  on  these  points  is  useless  to  the  present  pur- 
pose, since  the  husband's  right  [85]  to  administer,  on  whatever  foun- 
dation, is  now  beyond  all  question  establishcd.(l) 

The  stat.  29  Car.  2.  c.  3,  contains  a  clause,  that  the  statute  of  dis- 
tributions, the  22  &  23  Car.  2.  c.  10,  hereafter  to  be  discussed,  shall 
not  prejudice  such  title  of  the  husband,  under  an  apprehension  that 
it  miglit  be  considered  to  be  thereby  affected.  And  though  a  mar- 
riage was  voidable  as  being  within  the  prohibited  degrees,  but  not 
declared  void  in  the  lifetime  of  the  parties,  the  marriage  is  valid  for 
all  civil  purposes,  and  the  husband  is  entitled  as  a  civil  right  to  ad- 
ministration of  her  effccts(«). 

Such  is  the  general  right  of  the  husband  to  the  administration  of 
the  wife's  effects;  but  this  right  may,  in  certain  cases,  be  controlled 
or  varied(t;).  If  the  husband  part  with  all  his  interest  in  his  wife's 
fortune,  he  shall  not  be  entitled  to  the  administration;  as,  where  a 
wife  had  a  power  to  make  a  will,  and  dispose  of  her  whole  estate,  and 
though,  strictly  speaking,  she  made  no  will,  but  rather  an  appoint- 
ment capable  of  operating  only  in  equity,  the  court  held  that  it  was 

(r)  11  Vin.  Abr.  84,  in  note.  247.     Vid.  also  Com.  Dig.  Admon.  B. 

{s-)  Faw-try  v.  Fawtry,  1  Salk.  36.  6.  282.     2  Bl.  Com.  515.     4  Co.  51 

11    Vin.    Abr.    73.   84,  in  note.    116.  b.    Roll.  Abr.  910.     4  Burn.  Eecl.  L. 

Blackborough  v.   Davis,   1  P.  Wms.  264. 

44.     4  Burn.  Eccl.  Law,  235.     Vid.  (u)  Elliot  v.  Gurr,  2  Phill.  Rep.  16, 

Fettiplace  v.  Gorges,  1  Ves.  jun.  49.  {v)  3  Bac.  Abr.  55,  in  note.     Com. 

{t)  Watt  V.  Watt,  3  Ves.  jun.  246,  Dig.  Admon.  B.  6.  vid.  infr.      • 


(1)  Upon  the  death  of  a  husband  who  has  survived  his  wife,  and  administered  upon  her 
estate,  his  executor  (or  it  seems  his  administrator)  is  entitled  to  be  administi-ator  de  bo- 
nis 7ion  of  the  wife,  in  preference  to  her  next  of  kin,  or  (it  would  seem)  to  the  husband's 
residuary  legatee.  Hmdrenx.  Co/§-7n,  4  Munf.  Rep.  231 .  So  if  the  Imsband  survive  the 
wife,  and  die  without  administering  on  lier  property,  or  before  he  had  completed  the'  ad- 
ministration, and  the  wife's  next  of  kin  administer,  such  administrator  becomes  trustee 
for  the  rcpreseiiljitives  of  the  husband.  Stewart  v.  Slnvart,  7  Johns.  Cha.  Rep.  244. 
Jf'/iitaher  v.  fl'/iitaker,  G  Johns.  Rep.  117. 


CHAP.  11.].  OF  GRANTING  ADMINISTRATION.  85 

for  the  spiritual  jurisdiction  to  determine  to  whom  to  grant  adminis- 
tration, and  refused  to  interpose  in  favour  of  the  husband  ('«;). 

So  where  a  feme  covert,  by  virtue  of  her  power  to  dispose  of  her 
estate,  devised  a  term  for  years  to  J,  S.,  administration  Avas  granted 
to  the  devisee(a:).(l). 

[86]  On  the  other  hand,  where  the  return  to  a  ^nandamus  to  grant 
administration  to  a  husband  stated  that,  by  articles  before  marriage, 
it  was  agreed  that  the  wife  should  have  power  to  make  a  will,  and 
dispose  of  a  leasehold  estate,  and  pursuant  to  this  power  she  had 
made  a  will,  and  appointed  her  mother  executrix,  who  had  duly 
proved  the  same,  it  was  objected,  that  she  might  have  things  in  ac- 
tion not  covered  by  the  deed,  and  that  the  husband  was  at  all  events 
entitled  to  an  administration  in  respect  to  them,  though  equity  would 
control  it  in  respect  to  the  lease;  the  court  allowed  the  objection,  and 
granted  a  peremptory  inandamus[y). 

In  case  of  a  limited  probate,  granted  to  the  executor  of  a  married 
woman  as  above  mentioned(r),  the  husband  is  entitled  to  administra- 
tion of  the  other  part  of  her  property,  which  is  called  an  administra- 
tion cseterorum. 

Secondly,  the  ordinary  is  to  grant  administration  of  the  effects  of 
the  husband  to  the  widow  or  next  of  kin;  but  he  may  grant  it  to 
either,  or  both,  at  his  discretion(«).(2)  If  the  widow  renounce  ad- 
ministration, it  shall  be  granted  to  the  children  or  other  next  of  kin 
of  the  intestate,  in  preference  to  creditors. 

[87]  The  ordinary  may  grant  administration  quoad  part  to  the 
wife,  and  as  to  the  other  part,  to  the  next  of  kin;  for  in  such  case  there 
can  be  no  groyind  to  complain,  as  the  ordinary  is  not  bound  to  grant 
it  exclusively  to  either(6).  But  the  administration  is  so  much  a 
claim  of  right,  that  a  mandamus  will  be  issued  by  the  court  of  K. 
B.  in  favour  of  the  party  entitled  to  enforce  it(c). 

(w)  4  Burn.  Eccl.  L.  232.     Rex  v.  (a)  Vid.  11  Vin.  Abr.  92.     Anon. 

Bettesworth,  Stra.  1111.  Stra,  552. 

(x)  11  Vin.  Abr.  87.     Marshall  v.  \h)  11  Vin.  Abr.  71.     3  Bac.  Abr. 

Frank,  Prec.  Chan.  480.     Gilb.  Eq.  55.    Com.  Dig.  Admon.  B.  6.    Fawtry 

Rep.  143.  S.  C.  V.  Fawtry,  1.  Salk.  36.     Vid.  infr. 

{y)  4  Burn.  Eccl.  L.  232.     Rex  v.  (c)  Rex  v.  Inhabitants  of  Horsley, 

Bettesworth,  Stra.  891.1  8  East,  408. 

(2)  Vid.  supr.  68.       ' 

(1)  In  Virginia,  the  person  entitled  to  the  estate  is  entitled  to  the  administration  also,  as 
well  lie  bonis  non  as  originally,  Ciitchin  v.  WUhi7iSoti,  1  Call's  Rep.  3;  and  tlierefore 
where  the  personal  property  of  the  wife  was  so  settled  by  deed,  before  marriage,  that 
upon  her  decease  intestate  in  her  husband's  lifetime,  her  trustee  was  to  convey  the  same 
to  her  legal  heirs,  it  was  held,  that  her  nearest  blood  relation  was,  in  such  event,  en- 
titled to  the  administration  of  her  estate  in  preference  to  her  husband.  Bray  v.  Dudgeon, 
6  Munf.  132. 

(2)  And  in  Maryland,  natural  children,  who  were  residuary  legatees,  have  been  pre- 
ferred to  the  widow,  in  a  case  where  the  executors  named  in  the  will  refused  to  act. 
Govane  v.  Gova7ie,  1  Harr.  W  M'Hen.  346.  See  also  the  "  Act  relating  to  Registers  and 
Registers'  Courts,"  Sect.  22,  (Pamph.  Laws,  140, 141,)  as  to  the  right,  in  Pennsylvania,  to 
.idministrution  with  the  will  annexed,  in  cases  where  there  is  a  general  residue  of  the  es- 
tate bequeathed. 


87  OF  GRANTING  ADMINISTRATION.  •    [bOOK  I. 

It  now  becomes  necessary  to  inquire  who  are  such  next  of  kin  as 
shall  be  thus  entitled. 

Consanguinity  or  kindred  is  defined  to  he  vmcuhtm  personarinn 
ah  eoclem  stipUe  descendentium,  the  connexion  or  relation  of  per- 
sons descended  from  the  same  stock  or  common  ancestor.  This  con- 
sanguinity is  either  lineal  or  collateral(^/). 

Lineal  consanguinity  is  that  which  subsists  between  persons  of 
whom  one  is  descended  in  a  direct  line  from  the  other,  asbetween  J.  S. 
ihc  propositus  in  the  table  of  consanguinit}-,  and  his  father,  grandfa- 
ther, great-grand-father,  antl  so  upwards  in  the  ascending  line;  or 
between  J.  S.  and  his  son,  grandson,  and  great-grandson,  and  so 
downwards  in  the  direct  descending  line.  Every  generation  in  this 
lineal  direct  consanguinity  constitutes  a  different  degree,  reckoning 
cither  upwards  or  downwards.  The  father  of  J.  S.  is  related  to  him 
in  the  first  degree,  and  so  likewise  is  his  son;  his  grandsire  and  grand- 
son in  the  second;  his  great  grandsire  and  great  [88]  grandson  in  the 
third.  This  is  the  only  natural  way  of  reckoning  the  degrees  in  the 
direct  line,  and  therefore  universally  obtains  as  well  in  the  civil  and 
canon  as  in  the  common  law. 

Thus  the  lineal  consanguinity  falls  strictly  within  the  definition  of 
vinculum  personainim  ah  eodem  stijnte  descendentium,  since  li- 
neal relations  are  such  as  descend  one  from  the  other,  and  both  of 
course  from  the  same  common  ancestor(e). 

Collateral  kindred  answers  to  the  same  description;  collateral  re- 
lations agreeing  with  the  lineal  in  this,  that  they  descend  from  the 
same  stock  or  ancestor,  but  differing  in  this,  that  they  do  not  descend 
the  one  from  the  other. 

Collateral  kinsmen  are,  then,  such  as  lineally  spring  from  one  and 
the  same  ancestor,  who  is  the  stirps  or  root,  stipes  or  common  stock 
from  which  these  relations  arc  branched  out  As  if  J.  S.  have  two 
sons  who  have  each  issue;  both  of  these  issues  are  lineally  descended 
from  J.  S.  as  their  common  ancestor,  and  they  are  collateral  kinsmen 
to  each  other,  because  they  are  all  descended  from  one  common  an- 
cestor, and  all  have  a  portion  of  his  blood  in  their  veins,  which  de- 
nominates them  consunguineos. 

[89]  Thus  the  very  being  of  collateral  consanguinity  consists  in 
this  descent  from  one  and  the  same  common  ancestor,  A.  and  his 
brother  arc  related,  because  both  are  derived  from  one  father.  A.  and 
his  first  cousin  are  related,  because  both  are  descended  from  the  same 
grandfather;  and  his  second  cousin's  claim  to  consanguinity  is 
this,  that  they  are  both  derived  from  one^and  the  same  great-grand- 
father. In  short,  as  many  ancestors  as  a  man  has,  so  many  common 
stocks  he  has,  from  which  collateral  kinsmen  are  derived.  And  as 
from  one  couple  of  ancestors  the  whole  race  of  mankind  is  descended, 
it  necessarily  follows  that  all  men  are  in  some  degree  related  to  each 
other(/). 

(rf)  2  Bl.  Com.  202.  (/)  2  Bl.  Com.  204,  205.  504. 

(e)  Ibid.  203,  204. 


I  ^^• 

W  Great 

m  Grand- 

I  father's     |) 

i  Father. 

I  III.       I    I        V.       I 

I-  Great      |      |      Great      | 

I  Grand-     ||      |       Great       | 

I  father.      |      |      Uncle.      | 

I  Grand.     |     I       oVe^t 

I  father.     I     |     Uncle. 


3        TUS.         ^ 

I       Son.       I 

I  I 

1     II.     1 

|l  Grandson.  |l 

i  I 


f  III  ^ 

f       Great      | 
X  Grandson.  | 


VI.  I 
Second  | 
Cousin.    I 


I  I      f         ^-         t 

I        III.        I      I  Son  of  the  | 

I   Nephew.    |      |      Cousin     | 

i  I      i    German.    | 

1  I 

I        IV.        I 

I  Son  of  the  I 
I  Nephew  (I 
I  or  Brother's! 
I  Grandson.  I 

^<S>«><SxSxS>gl 


CHAP.  III.]  OF  GRANTING  ADMINISTRATION.  89 

The  mode  of  calculating  the  degrees  in  the  collateral  line  is  not 
that  of  the  canonists  adopted  by  the  common  law  in  the  descent  of 
real  estates,  but  conforms  to  that  of  the  civilians,  and  is  as  follows;  to 
count  upwards  from  either  of  the  parties  related  to  the  common  stock, 
and  then  downwards  again  to  the  other,  reckoning  a  degree  for  each 
person,  both  ascending  and  descending(^);  or  in  other  words,  to  take 
the  sum  of  the  degrees  in  both  lines  to  the  common  ancestor(A). 

Thus,  for  example,  the  propositus  and  his  cousin-german  are  re- 
lated in  the  fourth  degree.  We  ascend  first  to  the  father(2),  which 
[90]  is  one  degree,  and  from  him  to  the  common  ancestor,  the 
grandfather,  which  is  the  second  degree;  from  the  grandfather  we 
descend  to  the  uncle,  which  is  the  third  degree;  and  from  the  uncle 
to  the  cousin-german  which  is  the  fourth  degree.  So,  in  reckoning 
to  the  son  of  the  nephew,  or  brother's  grandson,  we  ascend  to  the 
father,  which  is  one  degree;  from  the  father  we  descend  to  the  bro- 
ther, which  is  the  second  degree;  from  the  brother  we  descend  to  the 
nephew,  which  is  the  third  degree;  and  from  the  nephew  to  the  son 
of  the  nephew,  which  is  the  fourth  degree(Ar). 

Of  the  kindred,  those,  we  must  recollect,  are  to  be  preferred,  who 
are  the  nearest  in  degree  to  the  intestate;(l)  but  from  among  persons 
of  equal  degree,  in  case  they  apply,  the  ordinary  has  the  power  of 
making  his  election(/).(2) 

The  court  never  forces  a  joint  administration;  and  where  the  op- 
tion was  between  two  persons  in  equal  degree  of  relationship,  one  of 
whom  had  been  twice  a  bankrupt,  the  court  rejected  the  claim  of  the 
latter,  and  condemned  him  in  costs(m). 

But  if  there  be  no  material  objection  on  one  hand,  or  reasons  of 
preference  on  the  other,  the  court  in  its  discretion,(3)  puts  the  ad- 
ministration into  the  hands  of  the  person  with  whom  the  majority  of 
interests  are  desirous  of  entrusting  the  estate(n). 

Of  the  next  of  kin,  then,  first  the  children,  and,  on  failure  of  them, 
the  father  of  the  deceased,  or  if  he  be  dead,  the  mother(4)  is  entitled 
to  administration:  the  parents  indeed,  as  well  as  the  children,  are  of 
the  first  degree,  but  the  children  are  allowed  the  preference(o) ;  then 
follow  brothers(/j) ;  hut  primogeniture  gives  no  [91]  right  to  apre- 

{g)  Ibid.   207.    504.      Mentney   v.  (/)  11  Vin.  Abr.  114,  115.     Com. 

Petty,  Pre.  in  Ch.  593.  Dig.  Admon.  B.  6. 

(A)  Ibid.  12th  edit,  note  (4).  (m)  Bell    v.  Timiswood,   2  Phill. 

(i)  iSee  the  table  of  consanguinity  Rep.  22. 

prefixed,  in  which  the  degrees  of  col-  («)  Budd  v.  Silver,  2  Phill.  Rep.  1^^. 

lateral  consanguinity  are  computed  as  {<>)  11  Vin.  Abr.  91,  92.    2  Bl.  Com. 

far  as  the  sixth.  504. 

(A)  4  Burn.  Eccl.  L,  355.     Black.  {p)  11  Vin.  Abr.  93. 
Desc.  41,  42. 

(1)  The  daughter  is  to  be  preferred,  in  g^-anting  administi-ation,  to  the  son  of  the  eldest 
son  of  the  intestate.     Lee  v.  Sedgivick,  1  Root's  Rep.  51. 

(2)  Taylor  v.  Delaney,  2  Caine's  Ca'Ses  in  ?>rror,  143. 

(3)  See  JVeaw's  Case,  9  Serg.  &c  Rawle,  186. 

(4)  Sloerier  v.  Luehvic^,  4  Serg.  8t  Rawle,  201. 


01  OF  GRANTING  ADMINISTRATION.  [rOOK  I. 

fercncc((7);  then  granclfathers(r),  and  altliousj;h  they  are  both  of  the 
second  degree,  yet  the  former  are  first  entitled;  next  in  order  are 
uncles  or  nephe\vs(6'),  and  lastly  cousins,  and  the  females  of  each 
class  respcctively(/).  Relations  by  the  father's  side  and  the  mother's 
in  equal  degree  of  kindred,  are  equally  entitled;  for  in  this  respect 
dignity  of  blood  gives  no  preference(i<).  So  the  half  blood  is  admit- 
ted to  the  administration  as  well  as  the  wholc(t»),  for  they  are  the 
kindred  of  the  intestate,  and  excluded  from  inheritances  of  land  only 
on  feudal  reasons(?^);  therefore  the  brother  of  the  half  blood  shall  ex- 
clude the  uncle  of  the  whole  blood(.r);  and  the  ordinary  may  grant 
administration  to  the  sister  of  the  half,  or  the  brother  of  the  whole 
blood,  at  his  discretion(y). 

If  a  feme  covert  be  entitled,  she  cannot  administer  unless  with  the 
husband's  permission(z),  inasmuch  as  he  is  required  to  enter  into  the 
administration  bond,  which  she  is  incapable  of  doing.  But  if  it  can 
be  shown  by  affidavit  that  the  husband  is  ai)road,  or  otherwise  in- 
competent, a  stranger  may  join  in  such  security  in  [92]  his  stead.  In 
either  case  the  administration  is  committed  to  her  alone,  and  not  to 
her  jointly  with  her  husband(«);  otherwise,  if  he  should  survive  her, 
he  would  be  administrator,  contrary  to  the  meaning  of  the  act(6). 

If  it  were  committed  to  them  jointly  during  coverture  only,  it 
might  perhaps  be  good,  because,  if  commited  to  the  wife  alone,  the 
husband  for  such  i)eriod  may  act  in  the  administration  with  or  with- 
out her  assent;  and  therefore  the  effect  of  the  grant  seems  in  either 
case  the  same(c). 

If  the  wife  be  the  only  next  of  kin,  and  a  minor,  she  may  elect 
her  husband  her  guardian  to  take  the  administration  for  her  use  and 
benefit  during  her  minority;  but  the  grant  ceases  on  her  coming  of 
age,  when  a  new  administration  may  be  committed  to  her. 

The  Stat.  21  //.  8.  has  also  expressly  provided  for  another  case 
than  that  of  actual  intestacy;  namely,  where  the  deceased  has  made 
a  will,  and  appointed  an  executor,  and  such  executor  refuses  to  take 
out  probate(^),  in  such  an  event  the  ordinary  must  grant  administra- 
tion cum  testamento  annexo,  with  the  will  annexed,  and  the  duty  of 
such  grantee  differs  but  little  from  that  of  an  executor  [93]  (e).  He 
is  equally  bound  to  act  according  to  the  tenor  of  the  will. 

{q)  Warwick  v.  Greville,  1   Phill.  {x)  11  Vin.  Abr.  85. 

Rep.  123.  0/)  2  Bl.  Com.  505. 

(r)   11  Vin.  Abr.  93,  and  in  note.  (2)  Thrustout  v.  Coppin,  Bl.  Rep. 

ftord  Raym.  684.     Com.  Dig.  Admon.  801. 

H.  6.     Blackborough  v.  Davis,  1  Salk.  (a)  11  Vin.  Abr.  85.     4  Burn.  Eccl. 

38.  L.  241.     Com.  Dig.  Admon.  D.  Sty. 

(.s)  2   Bl.   Com.   505.     Stanley  v.  75. 

Stanley,  1  Atk.  455.  (i)  3.  Salk.  21. 

(/)  2  Bl.  Com.  505.  {r)  11  Vin.  Abr.  85.     4  Burn.  Eccl. 

(»)  Blackborough  v.  Davis,  1.   P.  L.241.  Com.  Dig.  Admon.  D.  Wank- 

Wms.  53.  ford  v.  Wankford,  1  Salk.  305.     Vid. 

(i)  11    Vin.  Abr.  91.      Smith,   v.  Thrustout  v.  Coppin,  Bl.  Rep.  801. 

Tracey,  1   Ventr.  323.  424.     Earl  of  (f/)  4  Burn.  Eccl.  L.  228.     11  Vin. 

Wincliclsea  v.  Norclifle,  1  Vern.  437.  Abr.  78.     2  Inst.  397. 

{w)  2  Bl.  Com.  505.  (0  2  Bl.  Com.  504. 


CHAP.  III.]  •  OF  GRANTING  ADMINISTRATION.  93 

So,  if  one  of  two  executors  prove  the  will  and  die,  and  then  the 
other  refuse,  such  administration  shall  he  granted(/). 

The  ordinary  cannot  grant  administration  with  the  will  annexed  in 
which  an  executor  is  named,  until  he  has  either  formally  renounced 
his  right  to  the  probate,  or  neglected  to  appear  on  being  duly  cited 
to  accept  or  refuse  the  same.  So  if  several  executors  be  named  in 
the  will,  they  must  all  refuse,  or  fail  to  appear  on  citation  previous 
to  the  grant.  After  such  administration  the  executor  cannot  retract 
his  refusal  during  the  lifetime  of  the  administrator,  but  he  may  do  so 
after  the  grant  has  ceased  by  the  administrator's  death(5-). 

A  party,  although  otherwise  entitled,  may  be  incapable  of  the  of- 
fice of  administrator,  on  account  of  some  disqualification  in  point  of 
law.  The  incapacities  of  an  administrator  are  not  confined  to  such 
as  have  been  enumerated  in  respect  of  executors,  but  comprise  attain- 
der of  treason,  or  felony,  outlawry,  imprisonment,  absence  beyond 
sea,  bankruptcy  (A),  and,  in  short,  almost  every  [94]  species  of  legal 
disability;  for,  by  the  express  requisition  of  the  statute,  the  ordmary  is 
bound  to  grant  administration  to  the  next  and  most  lawful  friends  of 
the  intestate(i). 

But  coverture  is  no  incapacity,  nor  Is  alienage,  if  qualified,  as  in  the 
case  of  executors(A;).  Even  an  alien  of  the  half  blood  may  be  ap- 
pointed an  administrator(/). 


Sect.  II. 

Of  the  analogy  of  administrations  to  probates. 

What  has  been  stated  respecting  the  different  jurisdictions  relative 
to  probates,  of  issuing  a  commission  or  requisition  in  case  the  party 
be  in  an  ill  state  of  health,  or  reside  at  a  distance;  of  bona  notabilia; 
of  the  ecclesiastical  privilege  of  granting  probate  being  personal,  and 
not  local(m);  of  its  devolving  on  the  archbishop  where  the  party  de- 
ceased was  a  bishop,  and  on  the  dean  and  chapter  in  case  of  the  death 
or  suspension  of  the  metropolitan  or  ordinary;  of  his  being  compelled 
by  mandamus  to  grant  [95]  probate,  unless  he  return  a  lis  pen- 
dens{n);  of  caveats  and  appeals;  of  the  power  of  the  court  of  appeal 
to  grant  probate  where  the  sentence  isreversed(o);  of  probates  being 

(/)  Vid.  supr.  G9.  Brownl.  31. 

(g)  Vid.  supr.  45.  (/)  H    Vin,   Abr.   91.      Crooke  v. 

(A)  Co.  39.  b.     Com.  Dig.  Admon.  Watt,  2  Vern.  I'iG. 

B.  6.     4  Burn.  Eccl.  L.  233.     3  Bac.  (m)  4  Bum  Eccl.  L.  241. 

Abr.  5G,  in  note.  («)  4  Burn  Eccl.  L.  230.  Com.  Dig. 

(i)  Com.  Dig.  Admon.  B.  G.    Faw-  Admon.  B.  7.     11   Vin.  Abr.  74.  202. 

try  V.  Fawtry,  1  Salic.  3G.  4  Inst.  335. 

(k)  Com.  Dig.  Admon.  B.  G.    Ca-  {o)  U    Vin.  Al)r.   7G.     Com.  Dig. 

roon's  case,   Cro.   Car.  9.     Anoii.   1  Admon.  B.  2.     2  Itoll.  Abr.  233. 


95  PRACTICE  IN  REGARD  "  [bOOK  I. 

of  unquestionable  validity  in  courts  of  common  law(7;);  of  the  regis- 
ter's book  in  the  spiritual  court  being  evidence  where  the  probate  is 
lost(<7);  and,  if  issue  be  taken  thereon,  of  its  being  triable  by  a  jury; 
applies  equally  to  letters  of  administration. 


Sect.  III. 
In  regard  to  the  acts  ofajjarty  entitled  previous  to  the  grant. 

Although  an  executor  may  perform  many  acts  before  he  proves, 
yet  a  party  can  do  nothing  as  administrator  till  letters  of  administra- 
tion are  issued,  because  the  former  derives  his  authority  from  the 
will,  and  not  from  the  probate;(l)  the  latter  owes  his  entirely  to  the 
appointment  of  the  ordinary(r). 

It  has  indeed  been  held  that  a  party  before  administration  may 
file  a  bill  in  chancery,  although  he  cannot  commence  an  action  at 
law(.s). 

[96]  But  by  stat,  37  Geo.  3.  c.  90.  s.  10,  if  a  party  administer,  and 
omit  to  take  out  letters  of  administration  within  six  months  after  the 
intestate's  death,  he  incurs  the  penalty  of  lift}-  pounds(/). 


Sect.  IV. 
Practice  in  regard  to  administrations. 

Letters  of  administration  do  not  issue  till  after  the  expiration  of 
fourteen  days  from  the  death  of  the  intestate,  unless  for  special  cause, 
as  that  the  goods  would  otherwise  perish,  the  judge  shall  think  fit  to 
decree  them  sooner(i^).(2) 

On  taking  out  letters  of  administration,  the  party  swears  that  the 
deceased  made  no  will,  as  far  as  the  deponent  knows  or  believes, and 

(jt>)  Tourton  v.  Flower,  3  P.  Wms.  Salk.  301. 
369.  («)  4  Burn.   Eccl.  L.  242.     Fell  v. 

(y)  4  Burn.  Eccl.  L.  248.     Peau-  Lutwido^e,  Barnardist,  320. 
lie's  Case,  1  Lev.  101.  (/)  Vid.  supr.  43.  G6. 

(r)  11  Vin.  Abr.  202.  4  Burn.  Eccl.  (w)  4  Burn.  Eccl.  L.  242. 

Law,  211,     Wankford  v.  Wankford, 


(1)  See  15  Serg.  &Rawle,42. 

(2)  The  practice  in  Pennsylvania  is,  unless  a  caveat  be  filed,  to  grant  letters  of  admin- 
istration immediately  upon  the  decease  of  the  intestate,  if  applied  for.  The  register, 
however,  will  revoke  tlie  gi'ant,  if  any  person  having  a  i)aramount  right  make  application 
within  fourteen  days  from  the  death  of  the  intestate. 


CHAP.  III.]  TO  ADMINISTRATIONS.  96 

that  he  will  truly  administer  the  goods,  chattels,  and  credits,  by  pay- 
ing the  deceased's  debts,  as  far  as  the  same  will  extend,  and  the  law 
charge  him ;  and  that  he  will  make  a  true  and  perfect  inventory  of 
all  the  goods,  chattels,  and  credits,  and  exhibit  the  same  into  the 
registry  of  the  spiritual  court  at  the  time  assigned  him  by  the  court, 
and  to  render  a  just  account  of  his  administration  when  lawfully  re- 
quired. 

[97]  And,  pursuant  to  the  stat.  21  H.  3.  c.  5,  and  the  22  &  23 
Car.  2.  c.  10,  he  enters  into  a  bond  with  two  or  more  sureties,  con- 
ditioned for  the  making  or  causing  to  be  made  a  true  and  perfect 
inventory  of  all  and  singular  the  goods,  chattels,  and  credits  of  the 
deceased,  which  have  or  shall  come  to  the  hands,  possession  or 
knowledge  of  the  administrator,  or  into  the  hands  or  possession  of 
any  other  person  or  persons  for  him;  and  for  exhibiting  the  same 
into  the  registry  of  the  spiritual  court  at  or  before  the  end  of  six 
months;  and  for  well  and  truly  administering,  according  to  law, 
such  goods  and  chattels;  and  further,  for  the  making  a  true  and  just 
account  of  his  administration  at  or  before  the  end  of  twelve  months; 
and  for  delivering  and  paying  all  the  rest  and  residue  of  the  goods, 
chattels,  and  credits  which  shall  be  found  remaining  on  his  accounts 
(the  same  being  first  examined  and  allowed  of  by  the  judge  of  the 
court),  unto  such  person  or  pei'sons  respectively  as  the  judge  by  his 
decree  or  sentence,  pursuant  to  the  statute  of  distribution,  shall  limit 
and  appoint;  and  if  it  shall  thereafter  appear  that  any  will  was  made 
by  the  deceased,  and  the  executor  therein  named  exhibit  the  same 
into  the  court,  making  request  to  have  it  allowed  and  approved  ac- 
cordingly, for  the  administrator's  rendering  and  delivering;  on  be- 
ing thereunto  required  (approbation  of  such  testament  being  first 
had  and  made),  the  letters  of  administration  in  the  court.(l) 

[98]  When  administration  has  been  once  committed  to  any  of  the 
next  of  kin,  others,  even  in  the  same  degree  of  kindred,  have,  during 
the  life  of  the  administrator,  no  title  to  a  similar  grant;  so  different 
is  this  case  from  that  of  an  executor,  who  has  a  right  to  probate, 
though  it  has  been  already  taken  out  by  his  co-executor.  The  max- 
im, "  qui  prior  est  tempore,  potior  estjure^^  applies  in  the  former 
but  not  in  the  latter  instance(6). 


Sect.  V. 

Of  special  and  limited  administrations. 

TiiEUE  are  also  various  classes  of  administrations,  wliicli,  although 
not  founded  on  the  letter  of  any  of  the  above-mentioned  statutes, 

(i)  41  Vin.  Abr.  IIG.     Thomas  v.  Butler,  1  Vciitr.  218. 
(1)  See  the  act  oi"  IStli  March,  183'2,  (I'amph.  Laws,  135,)  ante,  jjage  82,  note  (2). 


98  OP  SPECIAL  AND  [bOOK  1. 

fall  within  their  spirit  and  intcndmcnt(c).  As,  if  no  executor  be 
named  in  tlic  will,  the  clause  of  such  appointment  being  wholly 
omitted,  or  wliere  a  blank  is  left  for  his  name,  administration  shall 
be  granted  with  the  will  annexed,  when  it  shall  be  proved  in  the 
same  manner  as  in  the  case  of  an  exccutor(c?). 

Or  if  the  executor  die  in  the  lifetime  of  the  testator(e),  or  if  the 
[99]  testator  name  the  executor  of  B.  to  be  his  executor,  and  die  in 
the  lifetime  of  B.,  for  till  B.'s  death  he  is  in  effect  intestate(/). 

Or  if  he  name  an  executor  to  have  authority  after  a  year  from  his 
death,  for  during  the  year  there  is  no  cxecutor(,g-);  and  in  such  cases 
administration  shall  be  granted  in  the  interval. 

So  if  the  executor  be  incapable  of  the  office,  the  party  is  said  to 
die  quasi  intestatus,  and  the  ordinary  must  grant  administration. 

So  if  an  executor  is  afterwards  disabled  from  acting,  as  if  he  be- 
come lunatic,  then,  on  the  same  principle  of  necessity,  there  shall 
be  a  grant  of  a  temporary  administration  with  the  will  annexed(/i). 

So,  in  all  the  above-mentioned  instances,  if  there  be  a  residuary 
legatee,  administration  is  in  general  granted  to  him  in  exclusion  of 
the  next  of  kin,  because  in  that  case  the  next  of  kin  hath  no  interest 
in  the  property,  and  the  presumption  of  the  statute,  that  the  testator 
would  have  given  it  to  him,  cannot  exist  where  such  a  legatee  is 
appointed(?').(l)  And  even  where  there  is  no  prospect  of  a  residue, 
a  residuary  legatee  is  entitled  to  an  administration  de  bonis,  in  pre- 
ference to  legatees  and  annuitants(/i;). 

If  several  persons  arc  entitled  to  the  residue,  it  may  be  granted 
to  any  of  them(/);  and  if  it  be  thus  granted,  the  other  residuary 
legatees  have  no  claim  to  a  subsequent  grant  in  the  lifetime  of  the 
grantee. 

[100]  Such  administration  may  be  also  granted,  although  it  be 
uncertain  whether  there  will  eventually  be  a  residue  or  not(m). 

Of  this  species  also  is  an  administration  durante  minoritate,  or 
during  the  infancy  or  minority  of  an  executor,  or  a  party  entitled  to 
administration(?i). 

A  distinction  exists  in  the  spiritual  court  between  an  infant  and 
a  mimor.     The  former  is  so  denominated  if  under  seven  years  of  age, 

(c)  Burn.   Eccl.  L.  237.     11  Vin.  (/)  11  Vin.  Abr.  90.  94. 

Abr.   91.     Plowd.   279.      Walker  v.  (A)   Atkinson  v.   Lady  Barnard,  2 

Woollaston,  2  P.  Wms.  582.  589.  590.  Phillimore,  316. 

((/)   11  Vin.  Abr.  09.     Com.  Dig.  (/)  Com.  Dig.  Admon.  (B.  6.)   Tay- 

Admon.  B.  1.     2  Bl.  Com.  503,  501.  lor  v.  Shore,  2  Jon.  1G2.     11  Vin  Abr. 

508.  94. 

(e)  11  Vin  Abr.  85.     Sty.  147.  {m)    Com.   Dig.   Admon.    (B.   G.) 

(/)  Com.  Dior.  Admon.  Thomson   v.    Butler,   2   Lev.   56.      1 

(,?)  Plowd.  279.  281  b.  Ventr.  219.  S.  C. 

(K)  Fawtry  v.  Fawtry,  1  Salk.  36.  {n)   Com.  Dig.   Admon.    (F.)     11 

Cited  Walker  v.    Woollaston,   2   P.  Vin.  Abr.  105. 
Wms.  582. 


(1)  Govune  v.  Govarie,  1  Ilarr.  &c  M'llen.  346. 


CHAP.  III.]  LIMITED    ADMINISTRATIONS.  100 

the  latter  from  seven  to  twenty-one.  The  ordinary  ex  officio  as- 
signs a  guardian  to  an  infant.  The  minor  himself  nominates  his 
guardian,  who  then  is  admitted  in  that  character  by  the  judge.  ,  Ac- 
cording to  the  practice  of  the  court,  the  guardianship  in  either,  case 
is  granted  to  the  next  of  kin  of  the  child,  unless  sufficient  objectioij 
to  him  be  shown,  and  administration  i*s  committed  to  such  appointee 
for  the  use  and  benefit  of  the  infant  or  minor. 

Although,  as  we  have  seen(7i),  an  administration  during  the  mi- 
nority of  an  infant  executor  was,  antecedently  to  the  stat.  38  Geo.  3. 
c.  87,  determined  on  his  attaining  the  age  of  seventeen,  yet  adminis- 
tration during  the  minority  of  an  infant  next  of  kin  was  always  of 
force  until  his  age  of  twenty-one;  on  the  principle  that  the  [101] 
authority  of  an  administrator  is  derived  from  the  stat.  of  31  Ed.  3. 
c.  11,  which  admits  only  a  legal  construction,  and  therefore  it  was 
held  he  must  be  of  the  legal  age  of  twenty-one  before  he  is  compe- 
tent; and  the  executor  comes  in  by  the  act  of  the  party,  and  that  he 
should  be  capable  of  the  executorship  at  the  age  of  seventeen  was  in 
conformity  to  other  provisions  of  the  Spiritual  law(o).  And  also, 
which  was  the  more  forcible  reason,  because  the  statute  of  distribu- 
tions requires  administrators  to  give  a  bond,  which  an  infant  is  inca- 
pable of  doing(/;). 

But  now  by  the  above-mentioned  stat.  38  Geo.  3.  c.  87,  reciting, 
that  inconveniences  arose  from  granting  probate  to  infants  under  the 
age  of  twenty-one,  it  is  enacted,  that  where  an  infant  is  sole  execu- 
tor, administration  with  the  will  annexed  shall  be  granted  to  the 
guardian  of  such  infant,  or  to  such  other  person  as  the  spiritual 
court  shall  think  fit,  until  such  infant  shall  have  attained  the  full  age 
of  twenty-one  years,  at  which  period,  and  not  before,  probate  of  the 
will  shall  be  granted  to  him. 

If  administration  be  granted  to  such  guardiaft  for  the  use  and  bene- 
fit of  several  infants,  it  ceases  on  the  eldest  attaining  twenty-one. 

If  there  be  several  infant  executors,  he  who  first  attains  the  age 
[102]  of  twenty-one  years  shall  prove  the  will,  and  die  administra- 
tion shall  cease(§');  but  administration  granted  during  the  minority 
of  several  children  will  not  expire  on  the  marriage  of  one  of  them 
to  a  husband  of  full  agc(r).  Nor,  if  an  infant  be  executrix,  shall 
it  be  determined  by  her  taking  a  husband  who  is  of  age.  Nor,  if 
there  be  several  infants,  by  the  death  of  one  of  them(.y). 

If  administration  be  granted  jyendente  minore  xtate,  and  the 
minor  coming  of  age  takes  upon  himself  the  administration,  he  must 
give  security  to  the  same  amount  that  the  administrator  did  in  the 
first  instance(^). 

(n)  Supr.  31.  Test.  473,  474. 

(o)    4   Burn.   Eccl.   L.    238,   239.  (r)  Jones  v.  Earl  of  Stafford,  3  P. 

Freke  v.   Thomas,   Ld.   Raynn.   G67.  Wins.  79. 

Com.  Dig.  Admon.  (F.)  (.s)  Jones  v.  Earl  of  Stafford,  3  P. 

(/;)  11  Vin.  Abr.  100,  101.     3  Bae.  Wuis.  70.     Sed.vido  Com.  Dig.  Ad- 

Abr.  13.     llarg.  Co.  Litt.  89  b.  note  G.  mon.  (F.)  and  5 -Co.  29  b. 

{q)  4   Burn.  Eccl.   L.  210.     L.  of  (/)  Abl)olt  v.  Abbott,  2  Phill.  578. 
10 


102  OF  SPECIAL  AND  [bOOK  I. 

If  there  be  two  executors,  one  of  whom  has  attained  the  age  of 
twenty-one  years,  and  the  other  not,  administration  shall  not  be 
granted  during  the  minority  of  him  that  is  under  age,  because  the 
former  may  execute  the  \vill(/). 

According  to  other  authorities(M),  administration  shall  in  such 
case  be  granted  to  the  one  executor  during  tiic  minority  of  the  other; 
but  they  are  not  warranted  by  modern  j)ractice. 

Tliis  administration  ought  not  to  be  committed  to  a  party  who  is 
very  poor,  or  in  distressed  circumstances,  though  the  guardian  or 
next  of  kin  to  the  infant.  When  the  court  of  chancery  sees  reason 
to  think  that  such  administrator  will  waste  or  misapply  the  etiects 
of  the  intestate  to  the  prejudice  of  the  infant,  for  whom  he  is  merely 
a  trustee,  that  court  will  ai)point  a  receiver  of  the  per[103]sonal 
estate,  notwithstanding  the  grant  of  administration(y). 

It  has  been  held  by  some,  that  if  such  administrator  continues  the 
possession  of  the  goods  after  the  full  age  of  the  executor,  he  becomes 
an  executor  de  son  tort;  but  this  is  denied  by  others;  and  their 
opinion  seems  to  be  more  correct,  because  he  came  to  the  possession 
of  the  goods  lawfully(?f>).    * 

In  this  class  is  also  to  be  ranked  administration  pendente  lite, 
while  the  suit  is  pcnding(.x-);  and  it  may  be  granted,  whether  the 
suit  respects  a  will  or  the  right  of  administration(y).  But  it  is 
never  granted  till  a  plea  in  the  cause  has  been  given  in,  and  ad- 
mitted. 

Nor  will  the  court  of  chancery,  generally  speaking,  in  such  case 
interfere,  and  appoint  a  receiver  during  tlie  litigation (z). 

Of  the  same  species  also  is  administration  grounded  on  the  inca- 
pacity of  the  next  of  kin  at  the  time  of  the  intestate's  death,  arising, 
for  instance,  from  attaint  or  excommunication,  madness,  [104]  or 
bankruptcy.  If  such  incapacity  be  afterwards  removed,  such  ad- 
ministration may  be  avoided(«). 

To  tliis  description  also  must  be  referred  administration  granted 
at  common  law  durante  absentia,  during  the  absence  of  the  execu- 
tor or  next  of  kin  from  the  kingdom;  and  it  of  course  ceases  on  the 
appearance  of  the  executor  or  next  of  kin,  and  his  taking  out  pro- 
bate or  administration(6). 

Under  this  head  is  also  comprised  administration  granted  to  a 
creditor:  such  administration  in  general  is  warranted  only  by  cus- 

(0  4  Hum.  Eccl.    L.  240.     Pigot  {x)  4  Burn.  Eccl.  L.  237. 

and  Gascoigne's  case,  1   Brownl.  46.  (?/)    3    Bac.   Abr.    56.     Walker  v. 

11    Vin.  Abr.   99.     Foxwist  v.   Tre-  Woollaston,  2  P.  Wms.  575.     11  Vin. 

maine,  1  Mod.  17.     Hatton  v.  Mascal,  Abr.  105. 

1  Lev.  181.  (2)  4  Burn.  Eccl.  L.  238.     Knight 

(u)  11  Vin.  Abr.  97,  98,  99.    3  Bac.  v.  Duplessis,  1  Ves.  325. 

Abr.  13.     Colborne  v.  Wright,  2  Lev.  («)  Com.  Dig.  Admon.  B.  1.   Faw- 

239,  240.     S.  C.  2  Jo.  119.     Smith  v.  try  v.  Fawtry,  iSalk.  36. 

Smith,  Yclv.  130.  (/>)    Roll.    Abr.    907.    Lutw.    842. 

(r)   11   Vin.  Abr.   100.     Havers  v.  Slaughter  v.  May,  Salk.  42,  and  vid. 

Havers,  Barnard.  23,  24.  supr.  70. 

{w)  11  Vin.  Abr.  98.     1  Sid.  57. 


CHAP.  III.]  LIMITED  ADMINISTRATIONS.  104 

torn,  and  not  by  any  express  law,  and  may  be  granted  where  it  is 
visible  tlic  next  of  kin  cannot  derive  any  benefit  from  the  estate; 
but  that  is  to  be  understood  only  where  they  refuse  the  grant,  and 
the  course  is  for  the  ordinary  to  issue  a  citation  for  the  next  of  kin 
in  special,  and  all  others  in  general,  to  accept  or  refuse  letters  of  ad- 
ministration, or  show  cause  why  the  same  should  not  be  granted  to 
a  creditor(c). 

And  by  the  aforesaid  stat.  33  Geo.  c.  87,  if,  after  the  expiration  of 
twelve  calendar  months  from  the  testator's  death,  the  exe[105]cutor 
to  whom  probate  had  been  granted  shall  be  residing  out  of  the  juris- 
diction of  his  majesty's  courts,  on  application  of  any  creditor,  next 
of  kin,  or  legatee,  grounded  on  an  affidavit,  in  the  form  therein  spe- 
cified, stating  the  nature  of  his  demand  and  absence  of  the  executor, 
such  administration  shall  be  granted. (1) 

Of  the  same  nature  is  administration  committed  by  the  ordinary, 
in  default  of  all  the  above-mentioned  parties,  to  such  discreet  person 
as  he  shall  approve(t/). 

The  jurisdiction  of  granting  these  administrations  results  from  the 
ordinary's  original  power  at  common  law,  by  which  he  may  make 
the  grant  to  whom  he  pleases;  and  therefore  it  is  held,  that  he  may 
in  these  cases,  as  not  having  been  expressly  provided  for,  impose  on 
the  grantee  such  terms  as  he  may  think  reasonable(e). 

Hence,  where  the  executors  renounced,  and  the  residuary  legatee 
moved  for  a  mandamus  to  the  ecclesiastical  judge  to  be  admitted  to 
prove  the  will,  and  have  administration  with  the  will  annexed,  on 
showing  cause  the  court  held  that  the  matter  was  left  to  the  election 
of  the  ordinary,  and  discharged  the  rule(y).(2) 

[106]  So,  where  a  grandfather  move  for  a  mandamus  to  such 
judge  to  grant  him  administration  of  the  etFects  of  his  deceased  son 
during  the  minority  of  his  grandson,  the  court  refused  the  applica- 
tion (_^). 

On  the  same  principle,  where,  on  the  renunciation  of  the  next  of 
kin,  several  creditors  apply  for  administration,  though  the  court  may 
prefer  any  one  of  them(/i),  yet,  on  the  petition  of  the  others,  it  will 

(c)  4  Burn,  Eccl,  L.  230.  2  Bl.  Com.  v.  Butler,  1  Ventr.  219.     Smith's  case, 

505.      Blackborough   v.  Davis,  Salk.  Stra.  892.  Rex  v,  Bettesworth,  ib.  956. 

38.     Com.  Dig.  Adraon.  B.  6.  (/)  4  Burn.  Eccl.  L.  231.     Rex  v. 

{d)  2  Bl.  Com.  505.  Bettesworth,    Slra.  .950.     Com.  Dig. 

(c)  4  Burn.  Eccl.  L.  237.     3  Bac.  Admon.  B.  0. 

Abr.  13.     Ld.  Grandison  V.  Countess  {g)  4  Burn.  Eccl.  L.  231.     Smith's 

of    Dover,    Skin.     155.      Walker    v.  case,  Stra.  892. 

Woollaston,  2  P.  Wms.  582,  589,  590.  (/t)  Harrison  v.  All  Persons,  2  Phill. 

Briersv.  Goddard,  Hob,250.    Thomas  Rep.  249. 


(1)  The  proceedings  to  remove  an  executor  who  removes  from  the  State  of  Pennsji- 
vania,  or  has  ceased  to  have  any  known  place  of  residence  therein,  (hiring  tlin  i)ciiod  of 
a  year  or  more,  are  provided  by  the  27tli  sect. of  the  act  of  'iOtli  Marcli,  18.12,  "relating- 
to  Orphan's  Courts,"  (Panipii.  Laws,  p.  197.)  See  firiffilh  v.  Fnidev,  8  Cr;u)cii,  9,  for 
the  law  of  limited  administrations. 

(2)  JsTeave^a  Case,  9  Serg.  &c  Rawle,  1 80. 


lOG  OF  SPECIAL  AND  [bOOK  I. 

conijiel  him  to  enter  into  articles  to  pay  debts  of  equal  degree  in 
equal  |)roporUons,  without  any  preference  of  his  own. 

'rhcrc  may  be  also  a  limited  or  special  administration  committed 
1o  the  party's  care,  namely  of  certain  specific  cflccts,  as  of  a  term  for 
years  and  the  like,  and  the  rest  may  be  committed  to  others,  or  for 
effects  of  the  intestate  in  this  country  or  place  to  one,  and'  for  effects 
in  that  country  or  place  to  another;  and  as  well  in  general  cases,  as 
in  the  case  above  stated,  of  the  wife,  and  next  of  kin(/i).  But  seve- 
ral administrations  cannot  be  granted  in  respect  of  one  and  the  same 
thing;  as  a  house,  or  a  bond,  or  any  other  debt.  For  it  would  be  ab- 
surd that  two  persons  should  have  a  distinct  right  to  an  individual 
chattel,  or  chose  in  actlon{l).  In  respect  however  to  creditors,  such 
several  administrators  are  all  considered  [107]  as  one  person,  and 
may  be  sued  accordingly(A'). 

Administration  also  may  be  granted  on  condition,  as  wliere  a  for- 
mer grantee  is  outlawed,  and  in  prison  beyond  sea,  it  may  be  com- 
mitted to  another,  but  so  as,  if  the  first  grantee  shall  return,  he  shall 
be  entitled  to  administer(/).     '  • 

The  ordinary  also,  in  default  of  persons  entitled  to  the  adminis- 
tration, may  gVant  letters  ad  colUgendtnn  bona  defuncti,  and  thereby 
take  the  goods  of  the  deceased  into  his  own  hands,  and  thus  assume 
tlie  office  of  an  executor  or  administrator  in  respect  to  the  collecting 
of  them;  but  the  grantee  of  such  letters  cannot  sell  the  effects  with- 
out making  himself  an  executor  de  son  tort.  The  ordinary  has  no 
such  authority,  and  therefore  he  cannot  confer  it  on  another(m). 

If  a  bastard,  who,  as  nullius  Jilius,  hath  no  kindred,  or  any  other 
person  having  no  kindred  die  intestate,  and  without  wife  or  child,  it 
hath  formerly  been  holden  that  the  ordinary  could  seize  his  goods, 
and  dispose  of  them  to  pious  uses;  but  now  it  seems  settled  that  the 
king  is  entitled  to  them  as  ulthnus  lucres;  yet  in  [108]  such  case  it 
is  the  practice  to  transfer  the  royal  claim  by  letters  patent,  or  other 
authority  from  the  crown,  with  a  reversion,  as  it  is  said,  of  a  tenth,  or 
other  small  proportion  of  the  property,  and  then  the  ordinary  of 
course  grants  to  such  appointee  the  administration(n).(l) 

It  has  indeed  been  asserted  that  such  letters  patent  are  merely  in 
the  nature  of  a  recommendation;  and  tiiat  though  it  be  usual  for  the 
ordinary  to  admit  such  patentee,  yet  it  is  rather  out  of  respect  to  the 
king  than  strictly  of  right(o). 

(h)  Com.  Dio-.  Admon.  B.  7.     Roll.  (w)  4  Burn.  Eccl.  L.  241.     11  Vin. 

Ab.  908.     Vid.  supr.  87.  Abr.  87.     Off.   Ex.   174,   175.     2  Bl. 

(0  3  Bac.  Abr;  57.  Roll.  Abr.  908.  Com.  505. 

Fawtry   v.   Fawtry,   Salk.   36.     Vid.  (n)  Com.  Dig.  Admon.  A.     11  Vin. 

supr.  98.  Abr.    88.     .lones  v.    Goodchild,   3   P. 

(/■■)   11  Vin.    Abr.    139.      Rose.  v.  Wms.  33.     1  Wooddes.  398.     Dougl. 

BartleU,  Cro.  Car.  293.  548. 

(/)  Com.  Dig.  Admon.  B.  7.    Roll.  .  (o)  U  Vin.  Abr.   86.     Manning  v. 

Abr.  908.     11  Vin.  Abr.  70.  Napp,  1.  Salk.  37. 

(1)  For  the  several  Acts  of  Assembly  in  relation  to  Esc/wats  in  Pennsylvania,  see  Piir- 
don's  Digest,  270.  (Eilit.  1S;51.) 


CHAP.  III.]  LIMITED  ADMINISTRATIONS.  108 

Administration  may  also  be  granted  to  the  attorney  of  all  execu- 
tors, or  of  all  the  next  of  kin,  provided  they  reside  out  of  the  pro- 
vince: but  if  the  effects  are  under  twenty  pounds,  such  administra- 
tion may  be  granted,  whether  they  are  so  resident  or  not. 

A  grant  of  administration  in  a  foreign  court,  as  for  example  at 
Paris,  is  not  taken  notice  of  in  our  courts  of  justice(7;).(l) 


[109]  Sect.  VI. 

Of  administrations  to  intestate  seamen  and  marines. 

With  regard  to  the  administration  of  the  wages,  pay,  prize-money, 
bounty-money,  or  allowance  of  money  of  such  petty  officers,  and 
seamen,  non-commissioned  officers  of  marines,  and  marines,  as  are 
above-mentioned,  in  respect  of  services  in  his  Majesty's  navy  by  the 
before-cited  stat.  55  Geo.  3.  c.  60,  it  is  enacted,  that  the  party  claim- 
ing such  administration  shall  send  or  give  in  a  note  or  letter  to  the 
inspector  of  seamen's  wills,  stating  his  place  of  abode,  and  the  parish 

(  jo)  Tourton  v.  Flower,  3  P.  Wms.  371.     Vid.  supr.  72. 

(1)  Until  the  passage  of  the  act  of  15th  March,  1832,  "  relating  to  Registers  and  Re- 
gisters' Courts,"  by  the  6th  section  of  which  (Pamph.  Laws,  136)  it  is  provided,  "that  no 
letter  testamentary  or  of  administration,  or  otherwise,  purporting  to  authorize  any  per- 
son to  intermeddle  with  the  estate  of  a  decedent,  which  may  be  granted  out  of  this  com- 
monwealth, shall  confer  upon  such  person  any  of  the  powers  and  authorities  possessed  by  an 
executor  or  administrator,  under  letters  granted  within  this  state,"  letters  of  adminis- 
tration granted  in  a  sister  state,  wer£  a  sufficient  authority  to  maintain  an  action  in  Penn- 
sylvania; and  such  has  been  the  practice  without  regard  to  the  particidar  intestate  laws  of 
the  state  where  they  have  been  granted.  Af  Cullovgh  v.  Young,  1  Binn.  63.  4  Ball.  292. 
The  provisions  of  the  act  of  1705,  in  relation  to  letters  of  administration  granted  out  of 
the  province,  have  uniformly,  however,  been  considered  not  to  extend  further  than  to  the 
provinces  of  this  country  at  the  time  the  act  was  passed;  and  hence  in  Grxme  v.  Harris  1 
Ball.  456,  it  was  held  tliat  letters  of  adrainistx-atioa  granted  by  the  Archbishop  of  York  were 
not  a  sufficient  authority  to  maintain  an  action  in  this  state.  The  courts  of  Vivginia  and 
New  York  do  not  take  notice  of  letters  testamentary,  or  of  administration  granted  abroad,  or 
out  of  the  state,  Dickinson,  adm.  v.  J\TCra-w,  4  Rand.  Rep.  158.  JMorrellw  Dickey,  1 
Johns.  Cha.  Rep.  153.  Doolittle  v.  Lewis,  7  Johns.  Cha.  Rep.  45.  Nor  do  the  courts  of 
New  Hampshire,  {Sabin\.  Gilman,  Adams's  Rep.  198,)  Connecticut,  [Perkim\.  Wil- 
Uams,  2  Root's  Rep.  462.  Riley  v.  Itiley,  Champtiri  v.  Tilley,  3  Day's  Rep.  74.  303.  See 
however  JVico//  v.  JMumford,  Kirby's  Rep.  274.)  Massachusetts,  {Good-winy.  Jones,  3 
Mass.  Rep.  514.  Stephens  v.  Gaylord,  Laugdon  v.  Poller,  11  Mass.  Rep.  369.  Picquet  v. 
S-wa7i,  3  Mason's  Rep.  469.)  Kentucky,  [Jackson  v.  Jeffries,  1  Marsh.  Rep.  88.)  Oliio, 
{Kerr  v.  Moon,  9  Wheat.  Rep.  565.)  or  the  District  of  Columbia,  [Femvick  v.  Sears,  1 
Cranch,  259.  Dixon's  Ex.  v.  Ramsey's  Ex.  3  Cranch,  319.)  Letters  of  administration 
grunted  in  a  sister  state  are  not  sufficient  authority  to  maiiitain  an  action  in  Nortli  Caro- 
lina, [Butts's  Adm.  v.  Price,  Cam.  &  Norw.  68.  Anon.  1  Ilayw.  Rep.  355,)  tliougli  pro- 
bate and  letters  testamentary  granted  in  another  state,  will  enable  executors  to  sue,  if  the 
testator  was  an  inhabitant  of  *tlie  state  where  such  probate  was  granted.  Stephen  v.  Smart, 
1  Carol.  Lav/.  Rep.  471.  But  the  objection,  that  the  pluintifl"  was  appointed  administrator 
by  the  authority  of  another  state,  must  be  pleaded  in  bar  or  abatement,  and  cannot  be 


109  OF  ADMINISTRATION  [bOOK  I. 

in  which  tlic  same  is  situate,  the  name  of  the  deceased,  the  name  of 
the  ship  or  shijis  to  which  he  helongcd,  and  that  he  has  heen  informed 
of  liis  death,  and  requesting  the  inspector  to  give  such  directions  as 
may  cnahle  liim  to  procure  letters  of  administration  to  the  deceased; 
u|)on  receipt  whereof  the  inspector  shall  send  or  cause  to  be  sent,  by 
course  gf  post,  under  cover  to  the  minister,  officiating-minister  or 
curate  of  the  parish,  wherein  the  claimant  shall  reside,  a  petition  or 
paper  containing  a  list  of  the  degrees. of  kindred  to  the  tenth  degree 
inclusive,  with  lilanks  for  the  time  and  place  of  the  intestate's  birth, 
and  the  sJiip  he  belonged  to,  and  that  the  party  had  obtained  infor- 
mation of  his  death,  with  blanks  for  the  place  where,  and  the  time 
when  it  happened,  without  leaving  a  will,  to  the  best  of  the  party's 
knowledge  and  belief,  and  applying  to  the  ins])ector  for  a  certificate, 
to  enable  such  party  to  obtain  letters  of  administratit)n  to  the  de- 
ceased's effects,  with  also  a  blank  of  his  degree  of  kindred;  and  [1 10] 
stating  that  no  one,  to  the  best  of  his  knowledge  and  belief,  was  of  a 
nearer  degree  at  the  time  of  the  intestate's  death,  who  died  (with  a 
blank,  in  wliich  to  insert  whether)  bachelor  or  widower;  to  which 
form  shall  be  sul)joined  a  blank  certificate,  to  be  signed  by  two  repu- 
table housekeepers  of  the  parish  where  the  party  applying  is  resident, 
of  their  knowledge  of  him,  and  of  their  belief  that  what  he  states  is 
true;  and  also  another  certificate  to  be  signed  by  the  minister  of  the 
parish,  and  two  of  the  church-wardens  or  two  elders  of  the  same,  as 
the  case  may  be,  certifying  that" such  two  housekeepers  are  resident 
in  the  parish,  and  of  good  repute,  and  also  stating,  that  if  the  party 
applying  is  the  widow  of  the  deceased,  she  must  forward  with  such 
certificate  an  extract  from  the  parish  register,  or  some  other  authen- 
tic proof  of  her  marriage,  and  containing  also  the  same  directions  as 
annexed  to  the  second  jcertiflcate  subjoined  to  the  above-mentioned 
check(a),  in  regard  to  proof  of  the  deceased's  death,  if  he  died  after 

(a)  Supr.  92. 


taken  after  an  issue  on  the  merits.  Langdonx.  Potter,  Champlin  v.  Tilley.  And  an  ad- 
ministrator appointed  in  another  state  may  maintain  an  action  on  a  judgment  recovered 
by  him  in  the  courts  of  that  state,  because  he  may  sue  upon  it  in  his  own  name.  Tal- 
maclge\.  Chapel,  15  Mass.  Rep.  71.  So  an  executor  or  administrator  of  a  creditor  in 
another  state,  having  possession  of  a  bond  and  mortgage  on  lands  situate  in  New  York, 
may  lawfully,  it  seems,  receive  payment  of  the  debt,  and  give  an  acquittance,  DooUttle  v. 
LeTvis,  7  Johns.  Cha.  Rep.  45,  as,  it  also  seems,  he  may  for  any  voluntary  payment  to 
him.  Williams  v.  Stoivs,  G  Johns.  Cha.  Rep.  353.  Stephens  v.  Gaylord.  And  where  an 
administrator  cum  testamento  annexo  of  a  person  who  was  domiciled  in  England  at  the 
time  of  his  death,  comes  into  Massachusetts,  and  takes  out  administt-ation  from  the  pro- 
bate office,  according  to  the  statute,  he  cannot  be  cited  before  the  judge  of  probate  to  ac- 
count for  assets  received  by  him  in  England.  Selectmen  of  Bosto7i  v.  Boylston,  2  Mass. 
Rep.  384.  Daives,  Judge,  &c.  v,  Jioylston,  9  Mass.  Rep.  337.  Nor  will  he  be  liable  to 
any  action  brought  against  him  in  that  state,  so  as  to  subject  the  real  estate  of  liis  intes- 
tate to  be  tiken  in  execution.     Jiovden  v.  Jiorden,  4  Mass.  Rep.  6". 

Where  administration  is  taken  out  in  one  state,  the  administrator  may  be  called  upon, 
in  rr|uity,  in  any  other  state,  to  account  for  the  assets,  by  a  creditor.  Fk-ans  v.  Tatem, 
9  Serg.  k  Rawle,  252.     Bryam.  jWGee,  2  AVash.  C.  C.  Rep.  337. 


CHAP.  III.]  TO  SEAMEN.  110 

he  had  left  the  naval  service,  in  regard  to  mentioning  the  name  of  a 
proctor  to  be  employed  in  obtaining  the  administration:  and  that 
the  application,  when  filled  up  and  attested,  shall  be  sent  by  the  gene- 
ral post  under  cover,  directed  to  the  treasure!-  or  paymaster  of  his 
Majesty's  navy,  London.     And  the  inspector  shall  at  the  same  time 
send  or  cause  to  be  sent  to  such  minister,  officiating-minister,  or  CU' 
rate,  a  letter,  acquainting  him  with  the  nature  of  the  claim  and  the 
steps  to  be  taken  thereon;   and  also  send  or  cause  to  be  sent,  in  like 
manner,  to  the  claimant  a  letter,  advising  him  of  the  forwarding  of 
the  petition  or  paper  under  cover,- to  such  minister,  officiating-minis- 
ter or  curate,  and  directing  him  to  take  such  steps  as  are  directed,  for 
the  purpose  of  substantiating  his  claim  to  the  satisfaction  of  the  in- 
spector; and  upon  receipt  of  the  said  petition  or  paper  and  letter,  the 
minister,  officiating-minister  or  curate,  shall,  on  being  applied  to  for 
his  signature  to  the  paper,  examine  the  claimant,  and  also  two  inhabi- 
tant householders  of  the  parish  as  may  be  disposed  to  sign  the  first 
certificate  on  the  paper,  touching  the  right  of  such  claimant  to  the  ad- 
ministration to  the  effects  of  the  intestate,  according  to  the  degree  of 
relationship  stated  in  such  petition,  and  being  satisfied  of  such  right, 
the  person  claiming  such  administration  shall  fill  up  or  cause  to  be 
filled  up,  the  several  blanks  in  the  first  part  of  the  paper,  according 
as  the  truth  may  be,  and  subscribe  the  same  in  the  presence  of  the 
minister,  officiating-minister  or  curate,  and  the  two  inhabitant  house- 
holders shall  also  subscribe  the  first  certificate  on  the  paper  (the 
blanks  therein  being  first  filled  up  agreeably  to  the  truth)  in  the  like 
presence;  for  which  purposes  the  claimant  and  the  householders  shall 
attend  at  such  time  and  place  as  the  minister,  officiating-minister  or 
curate  shall  appoint;  and  the  minister,  officiating-minister  or  curate 
shall  sign  the  second  certificate  upon  the  paper  (the  blanks  therein 
and  in  the  description  thereunto    subjoined   being   first    filled  up 
agreeably  to  the  truth) ;   and  the  claimant  shall,  before  his  exami- 
nation, or  his  signing  the  petition  or  application,  pay  to  the  minister, 
officiating-minister  or  curate,  a  fee  of  two  shillings  and  sixpence  for 
his  trouble  on  the  occasion;  and  the  said  paper  being  in  all  things 
completed  according  to  the  directions  therein  and  hereby  given,  the 
same  shall  be  returned  by  the  minister,  officiating-minister  or  curate, 
by  the  general  post,  addressed  to  the  treasurer  or  paymas[lll]ter  of 
his  Majesty's  navy,  London;  and  he  on  receiving  the  same  shall  di- 
rect the  inspector  to  examine  it,  and  make  such  inquiry  relative 
thereto  as  may  appear  to  him  necessary;  and,  if  he  shall  be  satisfied, 
to  make  out  a  certificate,  stating  the  application  of  the  party  to  his 
office,  containing  the  party's  description,  and  stating  whether  he  is 
sole  or  one  of  the  next  of  kin  of  the  deceased,  the  original  place  of 
residence  of  the  deceased,  and  whether  seaman  or  marine,  and  the 
name  of  the  ship  he  belonged  to,  and  that  he  died  intestate,  and 
whether  bachelor  or  widower,  together  with  the  time  of  his  death; 
and  that  it  appearing  that  no  will  of  the  deceased  has  been  lodged  in 
the  office,  he  therefore  grants  such  abstract  of  the  application,  and 
certifies  that  lie  believes  what  is  stated  to  be  true;  and  that  such  party 


Ill  OF  ADMINISTRATION  [bOOK  I. 

mav  obtain  letters  of  administration  to  the  effects  of  the  deceased, 
which  appear  not  to  exceed  a  sum  specified,  provided  such  party  is 
otherwise  entitled  thereto  by  law:  to  which  certificate  there  shall  he 
subjoined  a  notice,  that  the  j)revious  commission  or  reciuisition  is  to 
be  addressed  agreeably  to  the  superscription  of  the  within  cover,  in 
which  the  same  is  to  be  enclosed  and  forwarded  by  the  proctor;  and 
when  the  commis[ll2]sion  or  requisition  shall  be  returned  to  the  of- 
fice, it  will  be  forwarded  to  him,  and  he  is  then  to  sue  out  letters  of 
administration,  and  send  them  to  the  inspector,  with  his  charges 
noted  thereon;  and  then  this  certificate  the  inspector  shall  sign,  and 
address  to  a  proctor  in  Doctors'  Commons,  and  shall  at  the  same  time 
enclose  therein  a  letter  addressed  to  the  ministers  and  churchward- 
ens, or  elders  (as  the  case  may  be),  of  the  parish  within  which  the 
party  then  resides,  franked  by  the  treasurer,  paymaster,  or  inspector, 
in  which  the  previous  commission  or  requisition  is  to  be  enclosed,  in- 
forming him  of  the  application  attested  by  him  and  the  two  church- 
wardens or  elders,  and  requiring  him  to  swear  the  party  accordingly, 
provided  he  answers  the  description  contained  in  such  commission 
or  requisition;  and  when  the  same  is  executed,  to  return  it  to  the 
treasurer  or  paymaster  of  his  Majesty's  navy,  London,  and  to  spe- 
cify and  describe  the  receiver-general  of  the  land-tax,  collector  of  the 
customs  or  of  the  excise,  or  the  clerk  of  the  cheque,  whose  abode  is 
nearest  to  the  party  applying,  wiien  such  person  will  be  directed  tp 
pay  him  the  wages  due  to  the  deceased;  and  the  proctor  shall,  im- 
mediately on  receipt  of  such  certificate  enclosed  in  such  letter,  sue 
out  the  previous  commission  or  requisition,  and  enclose  it,  with  in- 
structions for  executing  the  same,  in  such  letter,  and  shall  transmit 
the  letter  by  the  general  post  to  the  minister  [113]  agreeably  to  the 
address  put  thereon  by  the  treasurer  or  paymaster  of  the  navy,  or  the 
inspector. 

If  the  minister,  officiating-minister  or  curate,  shall  reject  the  peti- 
tion or  paper  for  want  of  proof  to  his  satisfaction  of  the  claimant 
being  the  person  entitled  to  letters  of  administration  of  the  deceas- 
ed's effects,  such  minister,  officiating-minister  or  curate,  shall  state 
his  reasons  for  such  rejection  on  the  petition  or  paper,  and  return  the 
same,  addressed  to  the  treasurer  or  to  the  paymaster  of  the  navy;  and 
in  case  no  application  shall  be  made  to  the  minister,  officiating-min- 
ister or  curate,  by  theclaimant,  or  no  effectual  steps  shall  be  taken  by 
such  claimant,  so  as  to  complete  the  petition  or  paper,  and  the 
certificates  thereon,  within  the  space  of  two  calendar  months  from  the 
date  of  the  inspector's  letter  accompanying  such  petition  or  paper, 
the  minister,  officiating-minister  or  curate  shall,  at  the  expiration  of 
that  time,  return  the  petition  or  paper,  addressed  to  the  treasurer  or 
to  the  paymaster  of  the  navy,  with  his  reason  for  doing  so  noted 
thereon. 

The  minister  shall,  immediately  upon  the  receipt  of  such  letter, 
with  the  previous  commission  or  requisition  or  other  instrument  en- 
closed therein,  take  such  steps  as  to  him  may  seem  proper  or  neces- 
sary for  procuring  the  execution  of  such  previous  commission  or  re- 


CHAP.  III.]  TO  SEAMEN.  113 

quisitidn,  or  other  instrument  transmitted  by  the  proctor  to  be  exe- 
cuted; and  being  executed,  he  shall  transmit  the  same  to  the  treasu- 
rer or  to  the  paymaster  of  his  Majesty's  navy,  London;  who  shall, 
immediately  upon  the  receipt  thereof,  send  the  previous  commission 
or  requisition,  or  other  legal  instrument  executed  by  the  per- 
son applying  for  the  administration,  to  the  proctor  employed  in  Doc- 
tors' Commons,  who  shall  forthwith  sue  out  and  procure  letters  of 
administration  in  favour  of  the  person  so  applying  for  the  same,  in  the 
manner  and  form  above  mentioned,  to  the  estate  and  effects  of  the  in- 
testate. 

As  soon  as  any  letters  of  administration,  or  probates  of  wills,  or 
letters  of  administration  with  will  annexed,  have  been  obtained,  and 
passed  the  seal  of  the  proper  court  in  the  manner  dii-ected,  the  proc- 
tor wlio  sued  them  out  shall  immediately  send  the  same,  addressed 
to  the  treasurer  or  to  the  paymaster  of  his  Majesty's  navy,  together 
with  a  copy  of  the  will,  and  an  account  of  his  charges  and  expenses 
in  obtaining  the  same;  which  shall  not  exceed  the  sum  or  sums 
thereinafter  specified;  and  the  treasurer  or  paymaster  of  his  Majes- 
•ty's  navy,  upon  receiving  such  letters  of  admiriistration,  or  probates 
of  wills,  or  letters  of  administration  with  will  annexed,  shall  direct 
the  inspector  of  seamen's  wills  to  issue  a  check  containing  the  heads 
thereof;  and  the  inspector  shall  note  thereon  the  amount  of  the  proc- 
tor's charges  and  expences,  provided  the  same  shall  be  at  and  after 
the  rates  allowed  to  be  charged;  and  likewise  specify  and  describe 
upon  the  said  check,  the  revenue  officer  or  clerk  of  the  cheque  re- 
siding nearest  to  the  administrator  or  executor,  so  to  be  named  in 
such  check,  if  such  communication  shall  have  been  made  to  him; 
which  check  so  prepared,  shall  be  delivered  over  by  him  to  the  ad- 
ministrator or  executor,  together  with  the  copy  of  the  will  transmit- 
ted to  him  by  the  proctor,  the  copy  being  first  stamped  by  the  in- 
spector, if  the  administrator,  or  the  administrator  with  will  annexed, 
or  the  executor,  shall  be  present  or-demand  the  same  in  person;  but 
if  he  shall  not  be  present,  but  be  and  reside  at  a  distance,  then  the  in- 
spector shall  deliver  such  check  and  such  copy  of  will  to  the  deputy- 
paymaster. 

No  proctor  shall  deliver  any  letters  of  administration,  probate  of 
will,  or  letters  of  administration  with  will  annexed,  to  any  person  but 
the  treasurer  or  paymaster  of  the  navy,  or  the  inspector  of  seamen's 
wills,  under  a  penalty  of  one  hundred  pounds. 

For  further  penalties  upon  a  proctor  acting  contrary  to  the  provis- 
ions of  the  act,  vid.  supr.  64. 

The  statute  also  prescribes  similar  regulations  in  regard  to  the 
grant  of  administration  to  a  creditor  of  such  intestate. 


U 


1 11  OF  ADMINISTRATION  ON  DEATH  [bOOK  I. 


[11 IJ  Sect.  VII. 

Of  adminislrat  ions  in  case  of  the  death  of  the  administrator,  or 
of  the  executor  intestate. 

I  AM  now  to  consider  Ihc  effect  of  tlie  death  of  an  executor  or  ad- 
ministrator with  regard  to  the  administration. 

Wliere  administration  is  granted  to  two,  and  one  dies,  the  survi- 
ver  shall  be  sole  administrator(«);  for  it  is  not  like  a  letter  of  attor- 
ney to  two,  where  by  the  death  of  one,  the  authority  ceases,  but  it  is 
an  office  analogous  to  that  of  an  executor,  which  survives(6).     ' 

An  administrator  is  merely  the  officer  of  the  ordinary,  prescribed 
to  him  by  act  of  parliament,  in  whom  the  deceased  has  reposed  no 
trust;  and  therefore  on  the  death  of  that  officer,  it  results  to  the  ordi- 
nary to  appoint  another.  And  if  A.'s  executor  die  intestate,  the  ad- 
ministrator of  such  executor  has  clearly  no  privity  or  relation  to  A., 
since  he  is  commissioned  to  administer  the  effects  only  of  the  [115] 
intestate  executor,  and  not  of  the  original  testator.  In  both  these 
cases,  therefore,  it  is  necessary  for  the  ordinary  to  commit  another 
administration(c). 

But,  with  regard  to  the  species  of  administration  to  be  thus  granted, 
a  distinction  arises  between  the  case  where  the  executor  or  next  of 
kin  liad  before  his  death  taken  out  probate  or  letters  of  administra- 
tion, and  where  he  had  omitted  to  do  so. 

If  an  executor  die  before  probate,  his  executor  cannot  prove  or 
take  on  himself  the  .execution  of  the  will  of  the  original  testator,  be- 
cause he  is  not  thereby  named  executor  to  such  testator.  He  only 
can  prove  the  will  who  by  the  will  is  constituted  executor.  The 
omission  of  the  first  executor  to'prove  the  same  on  his  death  deter- 
mines, althougb  it  does  not  avoid  the  executorship,  or  vacate  the  acts 
which  he  has  performed  in  such  character(£/). 

When  this  case  occurs,  an  administration  must  be  granted,  and  the 
grantee  shall  be  the  representative  of  the  party  who  originally  died; 
but  it  shall  be  an  immediate  administration,  that  is,  without  making 
mention  of  the  executor,  whether  he  did  in  point  of  fact  [116]  admin- 
ister, or  not;  because  administering  is  an  act  in  pais,  of  which  the 
spiritual  court  cannot  take  notice.  The  ordinary  must  commit  ad- 
ministration; as  it  appears  to  him  judicially;  and  it  can  thus  appear 
only  by  the  probate(e). 

(«)  4  Burn.  Eccl.  L.  241.     Hudson  (f/)  11    Vin.    Abr.    67.    90.      HI. 

V.  Hudson,  Ca.  Temp.  Talb.  127.  Wankford  v.  Wankford,  1  Salk.  308, 

{h)  3    Bac.    Abr.    56.      Adams    v.  309.     Hayton  v.  Wolfe,  Cro.  Jac.  614. 

Bucklaud,  2  Vern.  514.     11  Vin.  Abr.  pi.   4.     Shep.  Touch.   464.     Isled  v. 

69.     Com.  Dio-,  Admon.  B.  7.  Stanley,  Dyer,  372.     Comber's  Case, 

(c)  Com.   Dlff.    Admon.    B.    6.      4  1  P.  V\  ms.  767. 

Burn.  Eccles.  L.  241.     1   Roll.  Abr.  (t)  Wankford  v.  Wankford,  1  Salk. 

907.     2  Bl.  Com.  506.  308.     3  Bac.  Abr.  19. 


CHAP.  111.]  OF  ADMINISTRATOR.  116 

In  like  manner,  if  A.  die  intestate,  and  B.  be  entitled  to  administer, 
and  die  before  he  take  out  administration,  an  immediate  administra- 
tion shall  be  committed:  in  such  case  it  shall  be  granted  to  the  re- 
presentatives of  B.,  if  the  only  party  in  distribution,  in  preference  to 
the  representatives  of  A.,  because  by  the  statute  of  distributions  B. 
had  a  vested  interest,  and  in  such  grant  the  ecclesiastical  court  regards 
the  property;  and  therefore  if  a  son  die  intestate  without  wife  or 
child,  leaving  a  father,  and  the  father  shall  himself  die  before  he 
takes  out  administration,  it  shall  be  committed  to  his  representa- 
tives(/);  and  so  it  has  been  held,  in  case  the  wife  die  intestate,  and 
the  husband  die  before  he  takes  out  administration,  it  shall  be  grant- 
ed to  the  representatives  of  the  husband;  but  it  is  now  settled  that 
the  court  is  in  the  latter  instance  bound  by  stat.  31  E.  3.  to  grant 
administration  to  the  next  of  kin  of  the  wife,  and  then  he  shall  be  a 
trustee  in  equity  for  the  husband's  representatives(^). 

If  the  deceased  executor  had  taken  out  probate,  or  the  de- 
[117]ceased's  next  of  kin  administration,  then  another  species  of  ad- 
ministration, which  hath  not  hitherto  been  mentioned,  becomes  neces- 
sary, namely,  an  administration  de  bonis  non,  that  is,  of  the  goods 
of  the  deceased  left  unadminlstered  by  the  former  executor  or  ad- 
ministrator, by  the  grant  of  which,  such  administrator  de  bonis  non 
becomes  the  only  personal  representative  of  the  party  originally  de- 
ceased(A).(l) 

Administration  of  either  species  is,  generally  speaking,  granted  to 
the  next  of  kin  of  such  party.  But  in  case  there  be  a  residuary  le- 
gatee, it  shall  be  granted  to  him  in  preference  to  such  next  of  kin  on 
the  principle  above  stj.ted,  because  the  next  of  kin  has  then  no  inte- 
rest in  the  property (i).  Thus  where  A.  made  C.  executor  and  resi- 
duary legatee,  and  B.  made  C.  executor  without  giving  him  the  sur- 
plus, and  C.  afterwards  died  intestate,  it  was  held,  that  the  adminis- 
trator of  C.  should  be  administrator  de  bonis  non  of  A.,  but  that  the 
next  of  kin  of  B,  should  be  administrator  de  bonis  non  of  V).{k).  If 
the  residue  be  bequeathed  to  several  persons,  such  administration 

(/)  11  Vin.  Abr.  88.  pi.  25.    Squib  (//)  11    Vin.  Abr.    111.     Attorney- 

V.  Wyn,  1   P.  Wms.  381.     Vid.  also  General  v.  Hooker,  2   P.   Wms.  340. 

Com.  Dig.  Admon.  B.  6.    Vid.  Earl  of  Com.  Dig.  Admon.  B.  1.     Plowd.  279. 

W  inchelsea  v.  Norcliffe,  1  Vern.  103.  3  Bao.  Abr.  19. 

{g)  Elliott  V.  Collier,  3  Atk.  526.  {i)  Com.  Dig.  Admon,  B.  6.  Thomas 

S.  C.  1  Ves.  16,  and  1  Wils,  169.     4  v.  Butler,  1  Ventr.  219.    S.  C.  2  Lev. 

Burn.  Eccl.  L.  235.     11  Vin.  Abr.  88.  56.     3  Bac.  Abr.  19. 

pi.  27.     Squib  v.  Wyn,  1  P.  Wms.  (/.:)  U  Vin.  Abr.  87.     Farringtonv. 

382,  note  1.     Vid.  infr.  217.  Knightly,  Prec.  Chan.  567. 


(1)  In  Brattle  v.  Gustin,  1  Root,  425,  letters  of  administration  were  revoked  at  the  in- 
stance of  a  creditor,  who  all(^ed  there  was  estate  suflicient  to  pay  his  debt  (a  jiiili^ment) 
and  administration  de  honin  non  granted.  And  tlie  distribution  of  the  estate  is  no  objec- 
tion to  its  being  granted  upon  the  application  of  a  creditor.  JiviUlk  v.  Convernc,  1  Itoot, 
174. 


117  ADMINISTRATION,  HOW  GRANTED.  [bOOK  1. 

niav  he  o-rantcd  to  all  or  cither  of  them,  as  in  the  case  of  an  oricinal 
administrator,  although  there  he  no  present  residue(/).  But  for 
such  jjurpose  there  must  he  a  com])lete  [US]  disposition  of  the 
property(w).  If  the  executor  he  himself  residuary  legatee,  although 
lie  refused,  or,  before  he  proved  the  will,  died  intestate,  an  imme- 
diate administration  with  the  will  annexed  shall  be  granted  to  his 
administrator(7?).  If  an  executor  be  residuary  legatee,  although  he 
refused,  or  died  before  proliate,  leaving  a  luill,  his  executor  will  be 
entitled  to  sucii  administration(o).  If  an  executor  and  residuary  lega- 
tee, after  probate,  die  intestate,  administration  dc  bonis  nan,  with 
the  will  annexed  of  the  testator,  shall  be  granted  to  the  administra- 
tor of  such  executor.  If  a  feme  covert  executrix  Hie  intestate,  then 
as  to  the  effects  which  she  had  in  that  capacity,  administration  shall 
be  granted  to  the  residuary  legatee,  if  any,  or  to  the  next  of  kin  of 
the  testator.  If  she  were  herself  residuary  legatee,  it  shall  be  granted 
to  her  husband  (^;). 

Where  there  are  two  executors,  of  whom  only  one  proves  and 
dies,  and  then  the  other  renounces,  the  executors  of  the  acting  ex- 
ecutor have  no  concern  with  tlie  administration  of  the  goods  unad- 
ministered,  but  the  same  shall  he  granted  to  the  next  of  kin,  or  resi- 
duary legatee  of  the  first  testator(<7). 

[119]  So,  if  there  be  two  executors,  one  of  whom  appoints  an  ex- 
ecutor, and  dies,  and  the  survivor  dies  intestate,  the  executor  of  the 
executor  shall  not  intermeddle  with  the  first  testator's  effects;  for  the 
power  of  his  testator  was  determined  by  his  death,  and  the  execu- 
torship vested  solely  in  the  other  executor  as  survivor. 

So  where  an  administrator  is  appointed  during  the  minority  of  the 
executor  of  an  executor,  he  has  no  autliority  to  intermeddle  with  the 
effects  of  the  original  testator.  The  ordinary,  in  either  case,  shall 
commit  administration  de  bonis  non  to  the  next  of  kin  or  residuary 
legatee  of  the  original  testator(r). 

(/)  Cora.  Dig.  Admon.  B.  6.     Vid.  Burn.  Eccl.  L.  236.     3   Salk.  21.     11 

Thomas  v.  Butler,  2  Lev.  56.  Vin.  Abr.  90.  91.  95.  108.     Vanthieu- 

(m)  11  Vin.  Abr.  89.     Jo.  225.  son   v.    Vanthieuson,    Fitzgibb.   203. 

(n)   11  Vin.  Abr.   88.92.     2  Roll.  Johnson's  case,  Poph.  106. 

Rep.  158.  {q)  Com.  Dig.  Admon.  B.  1.  House 

(«)  Com.  Dig.  Admon.  B.  6.     Isted  v.  Lord  Petre,  Salk.  311. 

V.  Stanley,  Dy.  372.  (;•)  11  Vin.  Abr.  67,  in  note  89.  Off. 

(/»)  11  Vin.  Abr.89.91.111.    Rach-  Ex.  101.  Limmer  v.  Every,  Cro.  Eliz. 

field  V.  Careless,  2   P.  Wms.  161.     4  211.     3  Bac.  Abr.  13. 


CHAP,  in.]  WHEN  VOIDABLE.  119 


Sect.  VIII. 

Hoio  administration  shall  be  granted — when  void — when  void- 
able— of  repealing  the  same — how  a  repeal  affects  mesne  acts. 

Administration  is  generally  granted  by  writing  under  seal;  it 
may  also  be  committed  by  entry  in  the  registry,  without  letters  sub 
sigillo;[\)  but  it  cannot  be  granted  by  parol(.s).(2) 

[120]  In  letters  of  administration  the  style  of  jurisdiction,  as  well 
as  the  name  of  the  ordinary,  shall  be  inserted(/). 

A  party  may  refuse  the  office,  nor  can  the  ordinary  compel  him  to 
accept  \i{ii). 

Where  administration  is  improperly  granted,  a  distinction  occurs 
between  administrations  which  are  void,  and  such  as  are  only  void-  ' 
able. 

If  there  be  an  executor,  and  administration  be  granted  before  pro- 
bate and  refusal,  it  shall  be  void  on  the  will's  being  afterwards 
proved,  although  the  will  were  suppressed,  or  its  existence  were 
unknown(y)(3),  or  it  were  dubious  who  was  executor(z^;),  or  he  were 
concealed  or  abroad(a:)  at  the  time  of-  granting  the  administration. 
Or,  if  there  be  two  executors,  one  of  whom  proves  the  will,  and  the 
other  refuses,  and  he  who  proved  the  will  dies,  and  administration 
is  granted  before  the  refusal  of  the  survivor,  subsequently  to  the 
death  of  his  co-executor;  or  if  granted  before  the  refusal  of  the  ex- 
ecutor, although  he  afterwards  refuse(^),  such  administration  shall  be 

(s)  11  Vin.  Abr.  70.  Anon.  1  Show.  (i<;)  Com.  Dig.  Admon.  B.  1.  Robin's 

408,  409.     Godolph.  231.    Com.  Dig.  Case,  Moore,  636. 

Admon.  B.  7.  {x)   11    Vin.   Abr.    68.      Abram  v. 

(/)  4  Burn.  Eccl.  L.  273.  Cunningham,  2  Lev.  182. 

\u)  Id.  233.  {y)  Com.  Dig.  Admon.  B.  2.  B.  10. 

(?;)  Com.  Dig.  Admon.  B.  1.  Plowd.  Abram  v.  Cunningham,  2  Lev.  182. 

279.  282.  Vid.  Anon.  1  Show.  411. 


(1)  As  to  the  manner  of  granting  administration  in  Pennsylvania,  see  ajite,  page  83, 
note  (2). 

(2)  After  a  lapse  of  more  than  thirty  years,  the  aiitliority  and  qualification  of  an  ad- 
ministrator were  presumed,  from  the  existence  of  an  inventory  and  schedule  of  claims  in 
the  probate  office,  attested  by  his  oath;  and  a  petition  preferred  by  him  to  the  Court  of 
Common  Pleas  for  licence  to  sell  tlie'real  estate  of  his  intestate,  with  the  original  certifi- 
cate of  the  judge  of  probate  thereon,  recognizing  him  as  administrator;  the  probate  records 
and  files  of  that  period  appearing  to  have  been  loosely  kept;  and  no  otljcr  vestige  of  his 
appointment  being  discoverable.     Battles  v.  Ilolley,  G  Greenl.  Rep.  143. 

(3)  It  is  part  of  the  condition  of  the  bond  given  by  an  administrator  in  Pennsylvania, 
"that  he  will  surrender  the  letters  of  administration  into  the  register's  office,  if  it  shall 
hereafter  appear  that  any  last  will  and  testament  was  made  by  the  deceased."  Act  of 
15th  March  1832,  Sect.  24.  (Pamph.  Laws,  142.) 


120  WHEN  VOIDABLE.  [bOOK  I. 

void(l).  It  sliall  also  be  void  if  2;rantcd  on  the  o;round  of  the  ex- 
ecutor's becoming  a  bankrupt,  as  it  was  before  the  stat.  [121]  38  Geo. 
3.  c.  87,  if  committed  durante  ininnriiate,  where  the  infant  execu- 
tor had  attained  the  age  of  scventeen(z).(2)  It  shall  also  be  void  if 
granted  by  an  incompetent  authority,  as  by  a  bishop,  where  the  in- 
testate had  bona  notabilia[a),  or  by  an  archbishop,  of  eifects  in  an- 
other province(6). 

In  all  these  instances  the  administration  is  a  mere  nullity.  The 
executor's  interest  the  ordinary  is  inca])able  of  divesting.  But  there 
is  another  description  of  cases,  where  administration  is  not  void,  but 
voidable  only  by  the  act  of  the  spiritual  court,  as  if  administration 
be  granted  to  a  party  not  next  of  kin(c),  or  to  one  of  kin  together 
with  one  not  of  kin,  as  to  a  sister  and  her  husband(f/);  or  to  the 
wife's  next  of  kin  instead  of  the  husband(e);  or  if  it  be  granted  on 
the  refusal  of  an  executor  who  had  before  administered(y');  or  if  it 
be  granted,  non  vocatisjure  vocandis,  without  citing  the  necessary 
parties(^);  or  to  a  stranger(/i);  or  by  fraud  and  misrepresentation, 
though  otherwise  duly  granted (^),( 3)  as  where  the  grantee  by  false 
suggestions  prevented  a  party  in  equal  degree  from  applying;  or  in 
case  administration  be  granted  in  con[122]sequcnce  of  the  incapacity 
of  the  next  of  kin,  and  the  incapacity  be  removed(A');  or  if  the  gran- 
tee shall  become  no7i  compos  mentis,  or  otherwise  incapable(/);  or 

(2)  11  Viii.  Abr.  09.     5  Co.  29  b.  Ex.  40,  41. 

(a)  3  Bac.  Abr.  36.     Com.  Dig.  Ad-  (g)  11  Vin.  Abr.  115.     Com.  Dig. 

mon.B.3.     Blackl)orough  v.  Davis,  1  Admon.  B.  8.     Ravenscroft  v. Ravens- 

Salk.  39.    1  P.  Wins.  44.  7G7.  S.  C.  croft.  1  Lev.  305. 

(Z/)  Allison  V.  Dickenson,  Hard.  216.  (/OH  ^'in-  ^^^r-   J^^.      Wilson  v. 

(c)  Com.  Dig.  Adnion.  B.  6.  Black-  Pateman,  INIoore,  396. 

borough  V.  Davis,  Salk.  38.    1  P.  Wms.  (/)   11    Vin.    Abr.   114.  117.     Har- 

43.  S.  C.  rison  v.  Mitchell,  Fitzgibb.  303. 

((Z)  Com.  Dig.  Admon.  B.  8.  Al.  30.  (A)  11    Vin.   Abr.   115.     Offley   v. 

(e)  11  Vin.  Abr.  85.    Anon.    1  Sid.  Best,  1  Sid.  373. 

409.  (/)  11  Vin.  Abr.  115,  116. 

(/)  Com.  Dig.  Admon.  B.  8.     Off. 


(1)  In  Pennsylvania,  by  the  21st  sect,  of  the  act  of  15th  March,  1832,  «  relating  to 
Registers  and  Register's  Courts,"  no  letters  of  administration  shall,  in  any  case,  be  origi- 
nally granted  upon  the  estate  of  any  decedent,  after  the  expiration  of  twenty-one  years 
from  the  day  of  his  decease,  except  on  die  order  of  the  Register's  Court,  upon  due  cause 
shown."  (Pamph.  Laws,  141.)  In  Massachusetts,  by  the  10th  sect,  of  the  Act  of  9th 
March,  1784,  administration  originally  granted  upon  the  estate  of  any  deceased  person,  af- 
ter the  expiration  of  twenty  years  from  the  death  of  sucli  person,  is  ipso  facto  void; 
and  the  defendant  in  an  action  brought  by  any  one  to  whom  administration  has  been 
granted  after  such  period  of  tw'enty  years,  may  plead,  that  the  plaintiff  is  not,  nor  ever 
was  administrator.     Wales  \.  Willard,  2  Mass.  Rep.  121. 

(2)  Twenty-one  years  in  Pennsylvania,  Act  of  15th  March,  1832,  sect.  23.  (Pampli. 
Laws,  141.) 

(3)  See  the  cases  in  which  grants  of  administration  arc  void  in  Pennsylvania,  Act  of 
15lh  March,  1832,  sect.  27.  (Pamph.  Laws,  142.)  Shauffler  v.  Stoever,  Adm.  4  Serg.  k 
Raw  le,  202.     Observe  tlie  facts  of  tlie  case. 


CHAP.  III.]  OF  REPEALING  THE  GRANT.  122 

if  it  be  granted  to  a  creditor  before  renunciation  of  the  next  of  kin(m) ; 
it  is  not  void,  but  voidable,  and  may  be  repealed.(l) 

If  there  be  4  residuary  legatee,  and  administration  be  granted  to 
the  next  of  kin,  though  not  void,  it  may  also  be  repealed,  whether 
there  be  any  present  residue  or  noi{n). 

Although  a  feme  covert  die  entitled  to  several  debts  due  to  her 
before  marriage,  which  by  law  do  not  belong  to  the  husband,  and  her 
next  of  kin  appear,  and  take  out  administration,  it  shall  be  repealed, 
and  administration  granted  to  the  husband(o).    . 

If  there  be  two  grants  of  administration,  one  by  the  metropolitan, 
and  the  other  by  the  bishop,  when  there  are  not  bona  not abilia,  the 
prerogative  administration  may  be  repealed(jo).(2) 

At  common  law  the  ordinary  might  repeal  an  administration  at  his 
pleasure,  but  now,  since  the  stat  21  H.  8.,if  administration  be  [123] 
regularly  granted  to  the  next  of  kin,  according  to  the  provisions  of 
the  same,  the  ordinary  has  no  such  discretion.  If  he  assign  a  cause 
for  a  repeal,  the  temporal  courts  are  to  judge  of  its  sufficiency(5'). 
Thus  it  was  held  that  where  the  ordinary  had  elected  to  grant  ad- 
ministration to  the  father,  he  had  no  power  of  repealing  the  admin- 
istration at  the  suit  of  a  party  alleging  herself  to  be  the  widow(r). 

So  where  administration  was  granted  to  a  sister,  a  married  woman, 
pending  a  caveat  entered  by  the  brother,  on  appeal  it  was  adjudged 
that  the  administration  should  not  be  revoked  at  his  suit(5). 

And  where  administration  was  granted  to  the  younger  brother, 
and  the  elder  sued  to  repeal  it,  the  decision  was  the  same;  but  in  that 
case  it  was  intimated  it  would  have  been  different  if  the  administra- 
tion had  been  granted  pending  a  caveat(if).  Nor,  if  administration 
be  granted  to  a  creditor,  and  afterwards  a  creditor  to  a  larger  amount 
appear,  shall  it  be  revoked  for  him(?/).  So  where  administration 
during  the  infancy  of  the  intestate's  sister  was  eom[124]raitted  to  the 
great-grandmother,  and  though  the  grandfather,  the  plaintifi"  in 
prohibition,  suggested  that  the  administration  was  granted  by  sur- 

(w)    Com.    Dig.    Admon.     B.    6.  Eccl.  L.  248,  349.     Com.  Dig.  Ad- 

Blackborough  v.  Davis,  1    Salk.    38.  mon.  B.  8.     Blackborough  v.  Davis,  1 

4  Burn.    Eccl.  L.  249.     Harrison  v.  P.  Wms.  42.  sed  vid.  Skinner,  156. 

Weldon,  Stra.  911.  '  (r)  Sand's  case,  Raym.  93.    S.  C.3 

(n)    Com.    Dig.    Admon.    B.    8.  Salk.  22.     11  Vin.  Abr.  115.    vS.  C.  1 

Thomson  v.  Butler,  2  Lev.  56.  1  Ventr.  Kebl.  667.  683.     S.  C.  1  Sid.  179. 

219.  S.C.  (*)    11   Vin.    Abr.   115.      Offley  v. 

{o)  11    Vin.  Abr.   92   in  note  116.  Best,  1  Lev.  186. 

Dubois  V.  Trant,  12  Mod.  438.  (<)  H  Vin.  Abr.   116.      Ayliffc  v. 

{p)  11    Vin.  Abr.  114.     Aliens  v.  AylilTe,  2   Kebl.    812.     Harrison    v. 

Andrews,  Cro.  Eliz,  283.     Com.  Dig.  Mitchell,  Fitzgibb.  303. 

Admon.  B.  8.  {u)  U  Vin.  Abr.  116.     Dubois  v. 

{q)  11     Vin.    Abr.    114.     4    Burn.  Trant,  12  Mod.  438. 


(1)  See  Frazier  v.  Griffith,  8  Cranch,  9.     Iloijal  v.  Eppes,  2  Munf.  Ucp.  479. 

(2)  In  Pennsylvania,  the  act  of  any  Register  in  any  matter  whereof  anotlier  Register 
has  the  exclusive  jurisdiction,  shall  be  void  and  of  no  eflect.  Act  of  15th  March,  1832, 
sect.  5.  (Pamiih.  Laws,  130.) 


124  OF  REPEALING  THE  GRANT.  [bOOK  1. 

prise,  and  that,  as  he  was  nearer  of  kin,  it  ought  to  be  granted  to 
Iiim;  the  court  thought,  in  this  instance,  propinquity  to  be  no  ground 
of  jireference,  and,  since  the  ordinary  had  no  power  irt  common  h^w 
to  grant  such  administration  in  the  case  of  an  infant  next  of  kin,  but 
only  in  that  of  an  infant  executor,  having  once  executed  his  authority, 
the  grant  ought  not  to  be  repealed(e).  So  where  A.,  an  infant,  was 
made  executor  and  residuary  legatee,  and  if  he  died  under  age,  then 
B.,  another  inHint,  was  appointed  residuary  legatee,  and  on  the  like 
contingency,  the  residue  was  bequeathed  to  C;  administration  during 
the  minority  of  A.  was  granted  to  M.  his  mother;  A.  died  intestate 
under  age,  B.  was  still  an  infant;  and  on  the  question  "whether  the 
administration  might  be  repealed  and  granted  to  C.  the  court  seemed 
to  be  of  opinion,  "that  the  ordinary  had  executed  his  authority,  and 
that  M.  should  not  be  divested  of  the  administration  during  the  in- 
fancy of  B.(/). 

So  also  administration  de  bonis  non,  with  the  will  annexed, 
granted  to  one,  where  two  had  equal  right,  is  good,  and  shall  not  be 
revoked  (_§•). 

[125]  But,  in  general,  if  administration  be  granted  to  a  wrong 
party,  in  such  case  the  ordinary  may  repeal  it,  and  grant  it  to  an- 
other, for  he  has  not  executed  his  authority,  and  it  is  a  power  inci- 
dent to  every  court  to  rectify  its  errors(A).(l) 

Therefore,  where  a  feme  covert  has  died  intestate,  and  her  next 
of  kin  had  obtained  administration,  it  was  adjudged  that  it  should 
be  repealed  at  the  suit  of  the  husband,  because  the  ordinary  had  no 
power  or  election  to  grant  it  to  any  other  than  to  him(z). 

A  person  in  possession  of  an  administration,  is  not  bound  to  pro- 
pound his  interest  till  the  party  calling  in  question  the  grant  has  first 
propounded  and  proved  his(^). 

If  the  administration  be  repealed  for  want  of  form  in  the  grant,  in 
such  case  the  ordinary  must  regrant  it  to  the  same  party,  although 
there  be  others  in  equal  degree(/). 

If  administration  be  repealed  quia  improvide,  that  is,  where,  on 
a  false  suggestion  in  respect  to  the  time  of  the  intestate's  death,  it 

(e)  11  Yin,  Abr.  100.  116.  Ld.  Gran-  L.  248,  249.  Com.  Dig.  Admon.  B.  8. 

dison  V.  Countess  of  Dover,  3  Mod.  Blackburn  v.  Davis,  1  P.  Wms.  42. 

23.  25.    Ld.  Grandison  v.  Countess  of  sed  vid.  Skinner,  156. 

Devon,    Skin.    155.     Vid.    Sadler  v.  (;)  11  Vin.  Abr.  116.   4  Burn.  EccL 

Daniel,  10  Mod.  21.  L.  248.     Sand's  Case,  3  Salk.  22. 

(/)   11   Vin.  Abr.  116.     Dubois  v.  (A)  Dabbs  v.  Chisman,  1  Phill.Rep. 

Trant,  12  Mod.  436.  438.  155.     Hibben  v.  Calember^,  lb.  166. 

{g)  11   V^in.  Abr.   116.     Taylor  v.  (/)  11  Vin. Abr.  115.   Offleyv.Besl, 

Shore,  2  Jo.  161.  1  Sid.  293. 

(A)  11  Vin.  Abr.  114.   4  Burn.  Eccl. 


(1)  The  Register's  Court  has  a  right  to  revoke  letters  of  administration  where  they  have 
issued  improperly,  and  direct  new  letters  to  issue  to  the  proper  person.  Stoever  v.  Lud- 
■wi^,  4  Serg.  &  Rawle,  201.  See  sections  22  and  25  of  the  act  of  15th  March,  1832. 
(P.imph.  Laws,  140..  142.) 


CHAP.  III.]  OF  REPEALING  THE  GRANT.  125 

issued  before  the  expiration  of  a  fortnight  from  that  event;  or  where 
the  court  on  committing  it  took  security  inadequate  to  the  value  of 
the  property,  it  shall  be  granted  to  the  same  person (w). 

Nor  can  the  ordinary  revoke  the  grant  on  account  of  abuse,  al- 
[126]  though  the  letters  were  issued  after  a  caveat  entered,  for  he 
ought  to  take  sufficient,  caution  in  the  first  instance  to  prevent  mal- 
.administration(w).  Nor  can  he  revoke  it  on  the  administrator's 
omission  to  bring  in  an  inventory  and  account(o). 

If  the  grant  regularly  issue,  and  subsequent  letters  of  administra- 
tion be  obtained  by  collusion,  such  subsequent  letters  are  void,  and 
shall  not  repeal  the  former  administration(/j). 

Some  authorities  maintain,  that  if  the  ordinary  comrnit  adminis- 
tration to  the  wrong  party,  and  then  commit  it  to  the  right,  the  se- 
cond grant  is  a  repeal  of  the  first  without  any  sentence  of  revoca- 
tion(^);  but  in  other  cases  it  is  held,  that  the  first  is  not  avoided 
except  by  judicial  sentence(r).  And  the  practice  is,  to  call  in  and 
revoke  the  first  administration  before  the  second  is  granted.  But 
after  an  administration  by  an  archbishop,  if  tlie  bishop  to  whom  it 
belongs  grant  administration  and  then  the  first  administration  be  re- 
pealed, the  administration  granted  by  the  bishop  before  the  repeal 
shall  stand  good (5). 

So  in  all  cases  where  the  first  administration  is  repealed,  the  se- 
[127]  cond  shall  be  valid,  though  committed  after  the  grant  of  the 
first,  and  before  the  repeal  of  it(^). 

If  the  ecclesiastical  courts,  in  the  granting  or  repealing  of  admin- 
istrations, shall  transgress  th^  bounds  which  the  law  prescribes  to 
them,  a  prohibition  from  the  temporal  courts  shall  be  awarded,  as  in 
the  case  above-mentioned,  where  the  ordinary  has  granted  a  regular 
administration,  and  is  proceeding  to  repeal  it  on  insufficient  grounds, 
such  as  mal-administration(w),  or  that  the  letters  issued  after  a  caveat 
entered(z;):  but  no  prohibition  to  the  ecclesiastical  courts  shall  issue 
on  suggestion,  that  they  are  about  to  repeal  an  administration  grant- 
ed by  surprise,  or  that  they  refused  to  commit  the  administration 
to  the  intestate's  next  of  kin,  but  were  proceeding  to  grant  it 
to  another,  for  the  point,  who  is  in  fact  next  of  kin,  is  of  spiritual 
cognizance,  and  must  be  contested  before  the  spiritual  jurisdic- 
tion(i^;). 

How  far  the  repeal  of  an  administration  aiFects  the  intermediate 
acts  of  the  former  administrator,  remains  now  to  be  considered. 

(m)  Com:  Dig.  Admon.  B.  3.  Offley  135  b. 

V.  Best,  1  Sid.  293.  (t)  Com.  Dig.  Admon.  B.  3.  Vid.  2 

(n)   11  Vin.  Abr.  115.  Com.  Dig.  Brownl.  119. 

Admon.  B.  8.     Thomas  v.  Butler,  1  (u)  Thomas  v.  Bailor,  1  Ventr.  219. 

Ventr.  219.  Al.  56. 

(0)  11  Vin.  Abr.  116.     Stv.  102.  (v)  Offley  v.  Best,  1  Lev.  186.  Dub. 

(/^)  11  Vin.  Abr.  114.     3  Co.  78  b.  S.  C.     1   Sid.  371.,    1   Lev.  187.  & 

(7)  11  Vin.  Abr.  114.   4  Burn.  Eccl.  vid.  supr. 

L.  249.  (w)    Blackboroiioh  v.   Davis,   1   P. 

(r)  11  Vin.  Abr.  115,  in  note.    PraU  Wms.  43.     2  Bl.  Com.  112.     11  Vin. 

V.  Stocke,  Cro.  Eliz.  315.  Abr.  92.  115.     Com.  Dig.  Admon.  B. 

(5)  Com.  Dig.  Admon.  B.  3,  8.  Co.  7,  8. 
12 


127  OF  PROHIBITION.  [bOOK  I. 

And  here  we  must  again  recur  to  the  distinction  between  such 
ri2S]  administrations  as  are  void,  and  such  as  are  only  voidable.     If 
the  grant  be  of  the  former  description,  the  mesne  acts  of  such  ad- 
ministration shall  be  of  no  validity;  as,  if  administration  be  com- 
milted  on  the  concealment  of  a  will,  and  afterwards  a  will  appear; 
inasmuch  as  the  grant  was  void  from  its  co/nmencement,  all  acts 
performed  by  the  administration  in  that  character  shall  be  equally 
void(.r).     Or  if  administration  be  granted  before  the  refusal  of  the 
executor,  a  sale  by  the  administrator  of  the  testator's  effects  shall  be 
void,  although  the  executor  afterwards   appear  and  renounce(y). 
Or  if  the  executor  omit  proving  the  will,  whereby  administration 
is  granted  to  a  debtor,  the  executor  may  afterwards  prove  it,  and 
then  sue  the  administrator  for  the  debt,  which  is  not  extinguished 
by  the  adminish-ation(2:).     So  where  an  administratrix  sued  a  debtor 
of  the  intestate,  and,  pending  the  suit,  another  by  fraud  procured  a 
second  administration  to  himself  jointly  with  her,  and  after  judg- 
ment released  to  the  debtor,  on  which  he  brought  an  audita  querela, 
and  in  the  mean  time  the  second  administration  was  revoked,  the 
release  was  held  to  be  of  no  avail(a). 

Thus  in  all  other  cases  the  acts  of  the  administrator  are  of  no 
effect,  where  the  administration  is  unlawful  ab  initio. 

[129]  If  the  grant  were  only  voidable,  then  another  distinction 
arises  between  the  case  of  suit  by  citation,  which  is  to  countermand 
or  revoke  former  letters  of  administration;  and  on  appeal,  which  is 
always  to  reverse  a  former  sentence(6). 

In  case  of  an  appeal,  such  intermediate  acts  of  the  administrator 
shall  l)e  ineffectual;  because,  as  we  have  before  seen,  the  appeal  sus- 
pends the  former  sentence,  and  on  its  reversal  it  is  as  if  it  had  never 
existed(c). 

But  if  administration  be  only  voidable,  and  the  suit  be  by  cita- 
tion, all  lawful  acts  by  the  first  administrator  shall  be  valid,  as  a  bond 
fide  sale,  or  a  gift  by  him  of  the  goods  of  the  intestate;  and  such  gift 
shall  be  available,  even  if  it  were  with  intent  to  defeat  the  second 
administrator,  or  were  yc\^Aq pendente  lite,  on  the  citation;  although 
by  the  stat.  13  Eliz.  c.  5,  it  be  void  as  to  a  creditor(fi^).  So  if  ad- 
ministration be  committed  to  a  creditor,  and  afterwards  repealed  on 
citation  at  the  suit  of  the  next  of  kin,  such  creditor  shall  retain 
against  the  rightful  administrator;  and  his  disposal  of  the  goods 
pending  the  cause,  and  before  sentence  of  repeal,  shall  be  effect- 
ual(e).(l)     If  an  administrator  assign  a  term,  and,  on  a  subsequent 

(x)  Com.  Dig.  Admon.  B.  10.  Abram  (6)  G  Co.  18  b. 

V.  Cunningham,  2  Lev.  182.     3  Bac.  (c)  Allen  v.  Dundas,  3  Term  Rep. 

Abr.  50.  129.     11  Vin.  Abr.  117. 

{_y)    11    Yin.    Abr.    95.     Abram   v.  {d)    Com.    Dig.  Admon.   B.   9.     1 

Cunningham,  2  Mod.  146.  Salk.  38.     6  Co.  18.  b.     11  Vin.  Abr. 

(2)  Com.  Dig.  Admon.  B.  10.    Bax-  95. 

ter  and  Bale's  Case,  1  Leon.  90.     11  (e)  Blackborough  v.  Davis,  1  Salk. 

Vin.  Abr.  94.  38.     11   Vin.   Abr.  117.     Thomas  v. 

(a)  Com.  Diff.  Admon.  B.  10.  Anon.  Butler,  1  Ventr.  219. 
Dyer,  339.    6  Co.  19. 

(I)  Benson,  adm.  v.  liice  et  al.  2  Nott  &  M'Cord,  577. 


CHAP.  III.]  HOV/  A  REPEAL.  129 

citation  to  repeal  the  administration,  it  is  confirmed,  and  on  appeal 
the  sentence  is  reversed,  the  assignment  shall  [130]  be  good,  for  the 
repeal  is  merely  of  a  sentence  on  citation,  and  therefore  of  the  nature 
of  a  suit  on  such  process;  consequently  the  effect  is  the  same  as  if  the 
first  administration  had  been  avoided  in  such  suit,  and  not  as  if  an 
appeal  had  been  brought  in  the  first  instance(/). 

But  where  an  administrator  sold  a  term  in  trust  for  himself,  al- 
though the  administration  were  revoked  on  a  suit  by  citation,  and 
not  on  an  appeal,  the  assignment  was  decreed  to  be  set  aside(iO-j.(l) 

Whether  the  administration  be  void  or  voidable,  a  bond  fide 
payment  to  the  administrator  of  a  debt  due  to  the  estate  shall  be  a 
legal  discharge  to  the  debtor,  by  analogy  to  the  case  before  stated 
in  regard  to  such  payment  under  probate  of  a  forged  will(/i).(2) 
In  a  case  as  early  as  the  time  of  Charles  the  Second,  where  the  ad- 
ministrator of  the  lessee  paid  rent  to  the  administrator  of  the  lessor, 
and  the  latter  administration  was  repealed  and  granted  to  A.,  and 
he  brought  an  action  as  well  for  the  rent  paid  to  the  former  adminis- 
trator of  the  lessor,  as  for  rent  which  accrued  due  subsequently  to 
the  repeal,  and  obtained  a  verdict  and  judgment  for  the  same,  the 
defendant  was  relieved  in  equity  in  regard  to  the  rent  he  [131]  had 
paid,  inasmuch  as  he  had  paid  it  to  the  visible  administrator(i). 

This,  however,  is  to  be  understood  only  where  the  grant  is  re- 
voked on  citation;  if  it  be  reversed  on  appeal,  the  administrator's 
authority  was  suspended  by  the  appeal,  and  of  course  such  payments 
shall  be  void.(3) 

But  whether  the  administration  be  void -or  voidable,  or  be  revoked 
on  citation  or  appeal,  if  an  action  be  brought  by  the  administrator, 
and,  while  it  is  pending,  administration  is  committed  to  another,  the 
writ  shall  be  abated  (A'). 

(/)   Syms  V.  Syms,   Raym.   224.  125,  supr. 
Semine   v.  Semine,  2   Lev.   90.     U  (/)  11  Vin.  Abr.  117.     Finch  Rep. 

Vin.  Abr.  118.  40. 

{g)    11    Vin.   Abr.    95.      Jones   v.  (/,-)  11  Vin.  Abr.  118.     Bro.  Admon. 

Waller,  2  Ch.  Ca.  129.  pi.  3. 

(A)  Allen  v.  Dundas,  3  Term  Rep. 

(1)  Though  the  law  is  too  well  established  now  to  be  drawn  in  question,  that  an  admin- 
istrator cannot,  at  either  public  or  private  sale,  purchase  in  the  goods  of  an  intestate  for 
his  own  use,  yet  if  the  goods  are  bona  fide  purchased  by  a  tiiird  person  for  his  own  use 
and  benefit,  without  colhision  between  him  and  the  administrator,  neither  the  principles 
of  law  nor  equity  preclude  the  administi-ator  from  afterwards  acquiring  a  right  in  the 
goods  by  a  subsequent  contract  with  sucli  purchaser.  Scott  v.  Bnrch,  f)  Ilarr.  &  Johns. 
67;  see  the  close  of  the  judgment. 

(2)  Peeble's  Appeal,  15  Serg.  &  Rawle,  39.  And  where  an  administi-ator  pendente  lite, 
who  has  no  power  to  make  distribution  of  the  estate,  has  made  distribution  according  to 
law,  the  court  will  not  compel  liim  to  refund  to  the  general  administrator,  in  order  that 
he  may  pay  it  over  again  to  tlie  same  persons.  Case  of  Bradford's  Adrrdmstrators, 
P.  A.  Browne's  Rep.  87. 

(3)  In  Pennsylvania,  by  the  42d  sect  of  the  act  of  15tli  March,  1832,  (Pamph.  Laws, 
146,)  "  No  appeal  from  the  decree  of  the  Register's  Court  concerning  the  validity  of  a 


131  HOW  A  REPEAL  AFFECTS  MESNE  ACTS.  [bOOK  I. 

Or  if  the  administratoi",  before  the  repeal,  obtain  a  judgment  for  a 
debt  due  to  the  intcstjitc,  he  is  not  entitled  to  take  out  execution,  but 
the  defendant  may  avoid  the  judgment  by  an  audita  querela{l). 
So,  if  the  defendant  be  actually  in  execution,  the  judgment  shall  be 
vacated  in  the  same  manner,  and  the  execution  set  aside(m):  for  in 
such  cases  the  plaintiff  had  no  authority  but  by  virtue  of  a  commis- 
sion from  the  ordinary,  and  when  that  is  determined,  his  authority 
is  determined  with  it.  But  on  affidavit  to  stay  execution  oa  a  judg- 
ment recovered  by  an  administrator,  on  the  ground  that  [132]  the 
letters  of  administration  were  repealed  before  the  judgment  entered, 
it  was  held  that  tlie  matter  did  not  come  legally  in  question  before 
the  court,  and  that  the  party  ought  to  bring  an  audita  querela{n). 

If  administration  be  granted,  and  afterwards  an  executor  appear, 
if  the  administrator  have  paid  debts,  legacies,  or  funeral  expenses,  he 
shall  be  allowed  to  deduct  such  payments  in  the  damages  recovered 
against  him  in  an  action  by  the  executor(o),(l) 

If  administration  have  been  granted  to  a  creditor,  he  has  a  right 
to  maintain  it  against  the  executor  of  a  will  afterwards  produced,  or 
the  next  of  kin;  it  is  not  to  be  revoked  on  mere  suggestion,  and  he 
is  at  liberty  to  show  cause  why  it  should  not  be  revoked (/>). 

But  if  administration  be  granted  to  a  creditor,  and  he  settles  his 
own  debt  and  goes  away,  it  will  be  revoked,  and  a  nevv  administra- 
tion granted(§'). 

(/)  11  Vin.  Abr.  102.  117.     Com.  («)  11  Vin.  Abr.  117.     Styl.  417. 

Dig.  Admon.  B.  10.     Turner  v.  Da-         (o)  3  Bac.  Abr.  50.     Plow.  282. 
vies,  2  Sand.  149.     S.  C.  1  Mod.  62.  {p)  Elme  v.  Da   Costa,    1    Phill. 

Lut.  343.  Rep.  173. 

(w)  11  Vin.  Abr.  117.  Ket  v.  Life,  (y)  In  re  Jenkins,  2  Phill.  Rep.  33. 
Yelv.  125.     3  Bac.  Abr.  51. 


will,  or  the  right  to  administer,  shall  suspend  the  power,  or  prejudice  the  acts  of  any  ad- 
ministrator or  executor  vho  shall  have  given  sufficient  security  to  the  register  for  the 
faithful  execution  of  his  ti'ust,  and  in  case  of  the  refusal  of  such  executor  to  give  such 
security,  the  said  i-egister  shall  grant  letters  of  administration  dui-ing  the  dispute,  which 
shall  suspend  the  power  of  such  executor  during  that  time." 

Where  a  defendant  has  received  letters  testamentary  on  a  will  duly  proved,  he  is  au- 
thorized to  perform  every  act  proper  for  an  executor  to  do,  notwithstanding  the  pendency 
of  the  question  relative  to  the  validity  of  tlie  will.  Bradford  v.  Boudinot,  3  Wash.  C.  C. 
Rep.  122. 

A  decree  of  the  Register's  Court  revoking  letters  of  administration,  and  directing  them 
to  issue  to  another  person,  which  decree  has  been  appealed  from  by  the  administrator, 
does  not,  while  such  appeal  is  pending  and  undetermined  in  the  Supreme  Court,  suspend 
his  power  of  proceeding  to  recover  the  debts  due  to  his  intestate.  Shauffier  v.  Stoever, 
4  Serg.  &  Rawle,  202. 

(1)  An  executor  obtained  letters  on  a  will  duly  proved,  which  was  afterwards  caveated, 
and  finally  adjudged  not  to  be  the  will  of  the  deceased.  Held,  that  it  was  his  duty  to  sup- 
port the  first  probate,  believing  it  genuine,  and  that  he  was  entitled  to  retain  out  of  the 
estate  the  amount  of  the  funeral  expenses,  the  expenses  incurred  in  litigating  the  ques- 
tion of  the  validitj-  of  the  will,  and  also  tlie  usual  commissions  for  managing  the  estate 
while  in  his  hands.     Bradford  v.  Boudinot,  .3  Wash.  C.  C.  Rep.  122. 


BOOK  I. 

OF  THE  RIGHTS  AND  INTERESTS  OF  EXECUTORS  AND 
ADMINISTRATORS. 


CHAR  I. 


op  THE  GENERAL    NATURE  OF  AN  EXECUTOR'S  OR  ADMINISTRATOR'S 

INTEREST DISTRIBUTION  OF  THE    SUBJECT  WITH  REFERENCE  TO 

THE  DIFFERENT  SPECIES  OF  THE  DECEASEd's  PROPERTY. 

An  executor  or  administrator  represents  the  person  of  the  testa- 
tor or  intestate  in  respect  to  his  personal  estate,  the  whole  of  which, 
generally  speaking,  vests  in  the  executor  immediately  on  the  testa- 
tor's death:  in  the  administrator,  on  the  grant  of  letters  of  adminis- 
tration(«);  and  such  grant  hath  relation  to  the  time  of  the  intestate's 
decease(6). 

The  interest  which  such  representative  takes  in  the  deceased's 
property  is  very  different  from  that  which  belongs  to  him  in  regard 
to  his  own.  Instead  of  being  an  absolute  interest,  it  is  only  tempo- 
rary and  qualified.  He  is  not  entitled  in  his  own  right,  but  [134]  in 
aider  droit,  in  right  of  the  deceased.  He  is  intrusted  merely 
with  the  custody  and  distribution  of  the  efrects(c). 

Hence,  if  a  tenant  for  years  die,  having  appointed  him  who  has 
the  reversion  in  fee  his  executor,  whereby  the  term  of  years  vests 
also  in  him,  the  term  shall  not  merge,  for  he  has  the  fee  in  his  own 
right,  and  the  term  of  years  in  right  of  the  testator,  and  subject  to 
his  debts  and  legacies(r/).  So  if  an  executor  be  attainted  of  felony 
or  treason,  he  incurs  a  forfeiture  of  all  his  own  goods  and  chattels, 
but  those  of  which  he  is  possessed  as  executor  sliall  not  be  forfeit- 
ed(e). 

If  he  grant  all  his  property,  such  as  belongs  to  him  in  the  charac- 

(a)  Com.  Dig.  Admon.  B.  10,  11.  525.     11  Vin.  Abr.  54,     9  Co.  88  b. 

Co.  Litt.  209.     3  Bac.  Abr.  57.     Off.  Rutland  v.  Rutland,  2  P.  Wms.  212. 
Ex.  Suppl.  47.  {d)  2  Bl.  Com.  177. 

(i)    Com.   Dig.  Admon.    B.   1.     2         (e)  Marlow  v.  Smith,  2  P.  Wms. 

Roll.  Abr.  554,  200. 

(c)  Off.  Ex.  85.  88.     Plowd.  182. 


134  OF  THE  NATURE  OF  [bOOK  II. 

ter  of  executor  shall  not  pass,  unless  he  he  so  named  in  the  grant(y), 
or  unless  he  have  no  other  property(^). 

If  he  become  bankrupt,  the  commissioners  cannot  seize  the  spe- 
cific effects  of  the  testator,  not  even  in  money,  which  specifically 
can  be  distinguished  and  ascertained  to  belong  to  the  deceased,  and 
not  to  the  bankrupt  himself(A).  Nor  can  the  testator's  goods  be 
taken  in  execution  for  the  executor's  debt,  either  on  a  recog[135]ni 
zance,  statute,  judgment,  or  for  his  debts  of  whatever  nature(/), 
unless  there  be  sufficient  evidence,  either  direct  or  presumptive,  of 
the  executor's  having  converted  the  goods  to  his  own  use(A'),  or  un- 
less he  consent  to  such  seizure,  and  then  it  differs  not  from  any 
other  alienation;  an  execution  acquiesced  in  being  equivalent  to  a 
conveyance(/). 

Therefore,  where  an  executor  brought  an  action  in  the  court  of 
exchequer,  suggesting  that  the  defendant  detained  from  him  one 
hundred  pounds,  which  he  owed  to  him  as  executor  of  J.  S.,  where- 
by he  was  the  less  able  to  pay  a  debt  due  from  himself  to  the  crown; 
the  writ  was  abated,  because  the  court  could  not  intend  that  the 
king's  debt  could  be  satisfied  by  a  judgment  recovered  by  the  plain- 
tiff in  that  capacity(?7^). 

And  where  a  creditor  laid  by  for  six  or  seven  years,  permitting 
the  executor  to  remain  in  possession  of  the  testator's  property,  the 
court  refused  to  restrain  by  injunction  a  creditor  of  the  executor 
from  taking  in  execution  the  goods  of  the  testator  for  the  executor's 
own  debt(;i). 

Nor  can  an  executor  bequeath  the  effects  which  he  holds  in  that 
right(o).  And  if  he  die  without  a  will,  his  administrator  shall  not, 
as  we  may  remember,  intermeddle  with  the  testator's  estate.  Nor 
if  an  executor  die  in  debt,  shall  the  effects  of  the  testator  be  [136] 
liable  in  the  hands  of  the  executor's  representative,  to  the  payment 
of  the  executor's  debts(7j). 

So,  if  an  executrix  marry,  all  the  personal  chattels  of  which  she  is 
possessed  of  her  own  right,  are  of  course  absolutely  vested  in  the 
husband.  But  in  respect  of  the  goods  of  the  testator,  they  are  not 
transferred  by  the  marriage(5'). 

Nor  if  the  husband  of  an  executrix  sue  jointly  with  her  for  a 
debt  due  to  her  in  that  character,  and  she  die  after  judgment,  and 
before  execution,  can  the  husband  have  execution  on  the  judgment; 

(/)  Off.  Ex.  86.   Vid.  2  Roll.  Abr.  ler  J.   contra.      See   also   Whale  v. 

58.  pi.  8.    Ld.  St.  John's  Case,  1  Leon.  Booth,  ibid.  625,  in  note,  and  632. 

263.     Shep.  Touch.   94.     Marlow   v.  (k)  Vid.  Farr  v.  Newman,  and  also 

Smith,  2  P.  Wms.  200.  Quick  v.  Staines,  1  Bos.  &  Pull.  293. 

(g)    Hutchinson    v.    Savage,    Ld.  (/)  Per  Lord  Mansfield  in  Whale  v. 

Raym.  1307.  Booth. 

(A)  Copeman  v.  Gallant,  1  P.  Wms.  (m)  Off.  Ex.  87. 

319.     Howard   v.   Jemmett,   3   Burr.  (71)  Ray  v.  Ray,  Coop.  Rep.  264. 

1369.     Bourne  v.  Dodson,  1  Atk.  158.  (0)  11  Vin.  Abr.  421.     Plowd.  525. 

li)  11  Vin.  Abr.  272.     Com.  Dig.  Off.  Ex.  86. 

Admon.  B.  10.    Off.  Ex.  86.   R.  Farr.  (p)  Off.  Ex.  86. 

V.  Newman,  4  Term  Rep.  621.     I5ul-  (7)  Off.  Ex.  87. 


CHAP.  I.]  AN  executor's  INTEREST.  136 

for  although  he  were  privy  to  the  judgment,  yet  he  shall  not  re- 
cover the  debt,  because  it  belongs  to  the  testator's  representative(r). 
Nor  shall  a  term  in  the  hands  of  the  husband  in  right  of  his  wife  as 
administratrix  be  extendible  for  his  debt(.y). 

But  where  A.  appointed  his  widow  executrix,  who  continued  in 
possession  of  his  goods  during  threie  months  after  his  death,  and  at 
the  end  of  that  time  married  B.,  and,  for  half  a  year  after  the  mar- 
riage, the  goods  were  treated  by  them  both  as  the  goods  of  B.,  it 
was  held,  that  they  might  be  taken  in  execution  at  the  suit  of  B.'s 
creditor(/). 

Such  is  the  nature  of  the  interest  to  which  an  executor  or  admin- 
[137]  istrator  is  entitled  in  that  right,  and  so  distinguishable  is  it 
from  that  which  pertains  to  him  in  his  own. 

The  personal  property,  in  which  they  are  thus  respectively  in- 
terested, that  is  of  a  saleable  nature,  and  may  be  converted  into 
ready  money,  is  called  assets  in  the  hands  of  the  executor,  or  ad- 
ministrator, that  is,  sufficient,  from  the  French  assez,  to  make  him 
chargeable  to  a  creditor,  and  legatee,  or  party  in  distribution,  so  far 
as  such  goods  and  chattels  extend(tf). 

The  personal  effects  comprehend  so  wide  a  circle,  that  in  order  to 
view  them  with  any  distinctness,  it  is  necessary  they  should  be  ar- 
ranged in  a  variety  of  classes. 

I  shall  therefore  first  consider  them  as  distinguished  into  chattels 
real,  and  chattels  personal,  in  the  deceased's  possession  at  the  time 
of  his  death. 

I  shall  then  treat  of  such  as  were  not  in  his  possession.     And, 
Among  such  as  were  not  in  his  possession,  of  things  in  action,  as 
well  those  where  the  cause  of  action  accrued  in  his  lifetime,  as  those 
where  it  accrued  after  his  death. 

I  shall  then  proceed  to  the  examination  of  such  chattels  as  vest 
[138]  in  the  executor,  or  administrator,  by  condition,  by  remainder, 
or  increase,  by  assignment,  by  limitation,  and  by  election. 

I  shall  next  inquire  what  chattels  go  to  the  heir,  successor,  de- 
visee, or  remainder-man. 

Then  show  to  what  the  widow  shall  be  entitled. 
Then  describe  the  nature  of  the  interest  of  a  donee  mortis  causa. 
And  lastly,  point  out  how  effects,  which  an  executor  or  adminis- 
trator takes  in  that  character,  may  become  his  own. 

(r)  1  Roll.  Abr.  889.  tit.  Execution.     293. 

(s)  Ridlerv.  Punter,  Cro.Eliz.  291.  (u)    1    Bl.    Com.    510.      Off.    Ex. 

\t)  Quick  V.  Staines,  2  Bos.  &  Pull.      Suppl.  53.     Shep.  Touchst.  496. 


139  OF  THE  executor's  INTEREST.        [bOOK  II. 


•  CHAPTER  II. 


OF    THE     INTEREST    OF     AN    EXECUTOK    OR    ADMINISTRATOR    IN    THE 
CHATTELS  REAL  AND  PERSONAL. 


Sect.  I 
Of  his  interest  in  the  chattels  real. 

First,  the  personal  representative  is  entitled  to  the  chattels  real, 
that  is,  such  as  concern  or  savour  of  the  realty,  as  terms  for  years 
of  houses,  or  land,  mortgages,  the  next  presentation  to  a  church, 
estates  by  statute  merchant,  statute  staple,  or  elegit,  interests  for 
years  in  advowsons,  commons,  fairs,  corodies,  estovers,  profits  of  leets, 
and  the  like.  This  species  of  chattels  is  styled  by  the  civil  law  im- 
moveajile  goods,  and,  inasmuch  as  they  are  interests  issuing  out  of, 
or  annexed  to  real  estates,  in  the  immobility  of  which  they  partici- 
pate, by  our  law  they  are  described  as  real.  And  also,  as  the  ut- 
most period  of  their  existence  is  fixed  and  limited,  either  for  such 
a  space  of  time  certain,  or  till  such  a  particular  sum  be  raised  out  of 
such  a  particular  income,  and  consequently  are  distinguishable  from 
the  lowest  estate  of  freehold,  the  duration  of  which  is  necessarily 
indeterminate,  they  are  denominated  chattels(a). 

[140]  Lands  devised  to  an  executor  for  a  term  of  years  for  pay- 
ment of  debts  are  assets  in  his  hands(6).(l) 

Leases  are  likewise  assets  to  pay  debts,  although  the  executor 
assent  to  the  devise  of  them(c).  And  in  case  a  term  be  devised  to 
the  executor,  and  he  enter,  and  die  before  probate,  the  term  shall  be 
deemed  to  be  legally  vested  in  him  by  his  entry,  and  the  devise 
executed  without  the  probate(c?).  So  a  lease  for  years  determinable 
on  lives  is  a  chattel  interest,  and  shall  vest  in  the  personal  represent- 
ative of  such  lessee(e). 

If  an  estate  be  granted  to  A.  pur  aider  vie,  but  not  limited  to  his 
heirs,  and  A.  die  in  the  lifetime  of  the  cestui  que  vie,  or  of  him  by 
whose  life  it  is  holden,  as  there  is  no  special  occupant,  the  heir  not 

(a)  2  Bl.  Com.  386.  3Bac.  Abr.  57,         (c)  11  Vin.  Abr.  233.  Chamberlain 
58.  60,  61.     Off.  Ex.  53,  54.  73.     11      v.  Chamberlain,  1  Chan.  Ca.  257. 
Vin.  Abr.  173.  227.    Pynchyn  v.  Har-         ((/)Dyer,  367,  a. 

ris,  Cro.  Jac.  371.    Off.  Ex.  Suppl.  59.  (e)  Off.  Ex.  54. 

(b)  1 1  Vin.  Abr.  240.    2  Brownl.  47. 

(1)  J\'immo''s  H^.  v.  Tlie  CommouweaHh,^  Hen.  k  Munf.  57. 


CHAP.  II.]  OF  THE  EXECUTOr's  INTEREST.  140 

being  named  in  the  grant,"  it  shall,  by  the  stat.  29  Car.  2.  c.  3,  go 
to  the  executor,  and  be  assets  in  his  hands  for  payment  of  debts, 
and  after  payment  of  the  same,  the  surplus  of  such  estate,  by  the 
stat,  14  Geo.  2.  c.  20,  shall  go  in  a  course  of  distribution  like  a  chat- 
tel interest(/).  These  statutes  operate  equally  on  grants  of  estates 
pur  aider  vie  in  incorporeal  hereditamenfs;  asif  rent  be  granted  to  A. 
during  the  life  of  another,  the  rent  by  virtue  of  these  [141]  provi- 
sions has  been  holden  to  continue  in  the  representatives  of  the  gran- 
tee dying  in  the  lifetime  of  tlie  cestui  que  vic[g). 

Where  A.,  tenant  for  three  lives  to  him  and  his  heirs,  assigned 
over  his  whole  estate  in  the  premises  by  lease  and  release  to  B.  and 
his  heirs,  reserving  rent  to  A.,  his  executors,  administrators,  and 
assigns,  with  a  proviso  that  on  non-payment  A.  and  his  heirs  might 
re-enter;  and  B.  covenanted  to  pay  the  rent  to  A.,  his  executors  and 
administrators;  the  rent  was  held  payable  to  A.'s  executor,  and  not 
to  his  heir,  on  the  ground  that  there  was  no  reverson  to  the  assignor, 
and  the  rent  was  expressly  reserved  to  the  executor.  That  therefore 
the  proviso  for  the  heir  to  enter  was  not  material,  for  the  reservation 
of  the  rent  being  to  the  executor,  the  heir  in  case  of  re-entry  would 
be  a  trustee  for  him  (A). 

In  case  of  a  tenancy  fi'om  year  to  year  as  long  as  both  parties 
please,  if  the  tenant  die  intestate,  the  same  interest  as  the  deceased 
had  shall  devolve  on  his  administrator(/). 

If  the  testator  were  lessee  for  years,  fish,  rabbits,  deer,  and  pi- 
geons, shall  belong  to  his  executor  as  accessory  chattels,  partaking  of 
the  nature  of  their  respective  principals,  namely,  the  pond,  the  war- 
ren, the  park,  and  the  dove-house(A;). 

If  an  executor  hath  a  lease  for  years  of  land  of  the  annual  value 
of  twenty  pounds,  rendering  a  rent  of  ten  pounds  a-year,  it  shall  be 
assets  only  for  the  ten  pounds  over  and  above  the  rent(/). 

A  reversion  of  a  term  is  vested  in  the  executor  immediately  on 
the  testator's  death,  and  shall  be  assets  in  his  hands  for  its  utmost 
value(m).(l)     If  an  executor  renew,  the  new  lease  as  well  as  the  old 

(/)  2  B],  Com.  120.  258,  259,  260.  (0  Doe  on  dem.  Shore  v.  Porter,  3 

Phillips  V.  Phillips,  Prec.  in  Ch.  167.  Term  Rep.  13.     Vid.  also  Gulliver  on 

S.  C.  1  P.  Wms.  39.     Duke  of  Devon,  dem.     Tasker  v.  Burr,  1   Black.  Rep. 

V.  Atkins,  2  P.  Wms.  380.     Vid.  At-  596.     Rex   v.   Willet,    6   Term   Rep. 

kinson,  Admx.  v.  Baker,  4  Term  Rep.  295.     James  v.  Dean,  11  Ves.jun.383, 

229,  and   6  Term  Rep.   291.     Milner  and  15  Ves.  jun.  236. 

V.  Lord  Harewood,  18  Ves.  273.  (/.)  Off.  Ex.  53.     11  Vin.  Abr.  166. 

(g-)  Ilarg.  Co.  Lit.  41  b.     Fearne's  Harg-.  Co.  Litt.  8,  note  10. 

Conting.  Rem.  23^,  233.     3  P.  Wms.  (/)  3  Bac.  Abr.  57.     U  Vin.  Abr. 

264,  in  note.    Kendal  v.  Micfield,  Bar-  230,  pi.  42.    S.  C.  5  Co.  31.    Off.  Ex. 

nard,  46.     Vid.  also  Stat.  5  Geo.  3.  c.  8uppl.  55.  Shep.  Touchst.  498.    Body 

17.    Sed.  vid.  2  Bl.Com.260.  Vaugh.  v.  llargrave,  Cro.  Eliz.  712.    Sed.vid. 

201.  Cro.  Jac,  545. 

(A)  Jenison  v.  Lord  Lexington,  1  P.  (m)   11  Vin.  Abr.  240.     Prattle  v. 

Wms.  555.                         •  King,  2  Jo.  170. 


{\)  DukcharVii  Ex.  v.  'Vhc  SliUc,  '\  ILirr.  k  Johns.  5O0. 
13 


141  OF  THE  executor's  INTEREST        [bOOK  II. 

shall  be  assfets(7i).  If  A.  be  possessed  of  a  term  as  executor,  and 
[112]  he  purcliase  the  reversoii  in  fee,  he  is  still  chargeable  for  the 
assets  in  respect  of  the  term,  although  it  be  extinguished,  so  that  it 
shall  be  incapal)le  of  vesting  in  his  executor(o).  So  if  the  executor 
of  the  lessee  surrender  the  lease,  it  shall  be  considered  as  assets,  al- 
tliough  the  term  be  extinct(7;). 

So,  where  A.  seised  of  land  in  fee  devised  it  to  B.  for  thirty-one 
years,  for  payment  of  debts,  and  appointed  B.  his  executor,  and,  dur- 
ing the  term,  the  fee  descended  on  B. ;  it  was  adjudged,  that,  al- 
though by  the  descent  of  the  inheritance,  the  term  was  inerged  as  to 
him,  yet  that  it  was  in  esse  as  to  creditors,  and  legatees,  and  should 
be  assets  in  his  hands(</).(l) 

If  A.  have  a  term  in  right  of  his  wife,  as  executrix,  and  he  pur- 
chase the  reversion,  the  term  is  extinct  as  to  her,  though  she  sur- 
vive, but,  in  regard  to  a  stranger,  it  shall  be  considered  as  assets 
in  her  hands(r).  But,  where  A.  on  his  marriage  demised  lands 
to  B.,  and  B.  re-demised  them  to  A.  for  a  shorter  term,  subject  to 
a  pepper-corn  rent,  during  the  life  of  A.,  and  after  his  death,  to  an 
annual  sum  for  the  life  of  his  wife,  as  her  jointure,  and  a  pepper- 
corn rent  for  the  remainder  of  the  term,  and  A.  died,  it  was  held, 
[1 13]  that  the  re-demised  term  should  not  be  assets  to  pay  any  of 
his  debts,  except  such  as  affected  the  inheritance,  inasmuch  as  such 
term  was  raised  for  a  particular  purpose(.9).  So,  where  A.  on  the 
maiTiao-e  of  his  son  B.  settled  a  lease  for  years  on  him  for  life,  and 
on  the^'wife  for  life,  and  then  on  the  issue  of  the  marriage,  and  B. 
covenanted  to  renew  the  lease  from  time  to  time,  and  to  assign  it  on 
the  same  trust,  and  B.  renewed  the  lease  in  his  own  name,  but 
made  no  assignment  to  the  trustees  and  died;  the  lease  was  held  to 
be  bound  by  the  agreement  on  the  marriage,  and  that  it  was  not 
assets,  nor  liable  to  his  debts(/).  Nor  where  a  lease  for  years  is 
granted  on  condition  to  be  void  on  non-payment  of  rent,  and  the 
condition  is  broken,  and  the  lessee  afterwards  dies,  shall  it  be  assets 
in  the  hands  of  his  executor(w)-  Nor  is  the  trust  of  a  term  made 
assets  by  the  statute  of  frauds  in  the  hands  of  the  executor  of  cestui/ 
que  tr\ist{iv). 

If  the  testator  die  in  possession  of  a  term  for  years,  it  shall  vest 
in  the  executor;  and,  although  it  be  worth  nothing,  he  cannot 
waive  it,  for  he  must  renounce  the  executorship  in  toto,  or  not  at 

(w")  3  Bac.  Abr.  58.     Anon.  2  Chan.  (s)    11    Vin.   Abr.   236.     Baden  v. 

Ca.  208.  Earl  of  Pembroke,  2  Vern.  52.  213. 

(*«)  Off.  Ex.  Suppl.  55.    11  Vin.  Abr.  (/)  11  Vin.  Abr.  237.     Goodfellow 

227,  pi.  IG.  21.     Shcp.  Touchst.  497.  v.  Burchett,  2  Vern.  298. 

(p)  1  Co.  87  b.     11  Vin.  Abr.  229.  («)  11  Vin.  Abr.  228.     2  Leon.  143. 

(n)    11    Vin.   Abr.   229.     Off.  Ex.  (uO  Vid.  11  Vin.  Abr.  236.    Greaves 

Suppl.  76.  V.   Powell,  2  Vern.   218.     Vid.  infr. 

(?•)  11  Vin.  Abr.  236.   Anon.  Moore,  Book  III.  c.  9. 
54. 


(1)  Sec  JS'immo^s  Ex.  v.  The  Commomccallh,  4  lien.  So  Muuf.  57. 


CHAP.  II.]  IN  CHATTELS  REAL.  143 

all(a^).  But  this  is  to  be  understood  only  where  the  executor  lias 
assets,  for  he  may  relinquish  the  lease,  if  the  property  be  insufficient 
[144]  to  pay  the  rent;  yet  in  case  there  are  assets  to  bear  the  loss 
for  some  years,  though  not  during  the  whole  term,  it  seems  the 
executor  is  bound  to  continue  tenant,  till  the  fund  is  exhausted, 
when,  on  giving  notice  to  the  lessor,  he  may  waive  the  possession(y). 

A  leasehold  estate  in  Ireland  is  considered  as  personal  estate  in 
England;  but,  whether  a  leasehold  estate  in  Scotland  is  to  be  re- 
garded in  the  same  light  seems  not  to  be  settled(2'). 

If  A.  covenant  to  grant  a  lease  for  years  to  B.,  his  executors  or  ad- 
ministrators, and  after  B.'s  death,  the  lease  is  granted  to  his  execu- 
tor accordingly,  it  shall  be  assets(a). 

So,  if  the  lessor  covenant  t^  renew  the  lease  at  the  request  of  the 
lessee,  within  the  term,  and  the  lessee  does  not  make  the  request,  but 
his  executors  make  the  request  within  the  term,  the  lessor  shall 
be  compelled  to  renew  the  lease;  for  the  executors  of  every  person 
are  implied  in  himself  and  bound  without  being  named(6). 

A  grant  of  the  next  presentation  to  a  living  to  J.  S.  during  his  life, 
is  limited,  and  shall  not  carry  the  presentation  to  his  executors,  on 
his  dying  before  the  church  becomes  void(c). 

Among  chattels  real  is  also  to  be  classed,  the  interest  styled  in 
law  the  anniiTn,  diem,  et  vastum,  the  year,  day,  and  waste,  that 
is,  where  a  party,  who  is  not  tenant  to  the  king,  is  attainted  of  felo- 
ny, all  his  lands  and  tenements  in  fee  simple  are,  after  his  death,  for- 
[145]  feited  to  the  crown,  for  a  year  and  a  day;  and  the  king,  or  his 
grantee,  and  therefore  his  executor  during  such  period,  hath  not  only 
a  right  to  take  the  rents  and  profits  of  the  estate,  but  also  to  commit 
upon  it  whatever  waste  he  pleases(G^). 

If  rent  be  reserved  on  a  lease  for  years,  and  the  lessor  die,  the 
rent  in  arrear  at  the  time  of  his  death  shall  go  to  his  executor(e). 

A  lessee  for  years  hath  only  a  special  interest,  and  property  in  the 
fruit,  and  shade  of  timber  trees,  so  long  as  they  are  annexed  to  the 
land,  but  he  has  a  general  property  in  hedges,  bushes,  and  trees  not 
timber(y),  and  consequently  the  same  interest  shall  vest  in  his  ex- 
ecutor. If  he  be  lessee  without  impeachment  of  waste,  in  that  case 
he  has  a  general  property,  as  well  in  timber  trees  as  others;  but  unless 
they  are  severed  during  the  term,  they  shall  not  belong  to  him,  or  to 
his  executor,  Ijut  to  the  lessor,  as  annexed  to  the  freehold. 

Where  such  chattels  concern  corporeal  hereditaments,  as  leases  for 
years  of  houses,  or  lands,  the  executor  is  not  deemed  to  be  in  pos- 
session of  them,  till  he  is  actually  entered.     But,  in  regard  to  such 

{x)  Com.  Dig.  Admon.  B.  4.  B.  10.  (c)   II   Vin.   Abr.  430.  pi.  27,   28. 

1  Sid.  2GG.     Fooler  v.  Cooke,  1  Salk.  Mann  v.  Bishop  of  Bristol,  Cro.  Car. 

297.     Helier  V.  Casebert,  1  Lev.  127.  50G. 

Bolton  V.  Cannon,  1  Ventr.  271.  supr.  {d)  3  Bae.  Abr.  fil.     Off.  Ex.  54. 

42.  2  Bl.  Com.  252.    4  Bl.  Com.  385.     II 

(.y)  Off.  Ex.  120.     Vid.  infr.  Vin.  Abr.  175. 

(z)  11  Vin.  Abr.  239.    Bligh  v.  Earl  {r)  Off.  Ex.  53.     Off.  Ex.  Suppl. 

Darnley,  2  "?.  Wms.  022.  1 1!».     3  Bac.  Abr.  G3. 

(a)  Shop.  Toucbst.  497.  inf.  (/)  Com.  Dig.  Biens.  H.    4  (-o.  G2. 

(/>)Hydev.  Rkinner,2P.  Wms.  lOG.  b.  y.  90  b.     1  Roll.  IJnp.  181. 


145  OF  THE  executor's  interest  [book  II. 

chattels  as  relate  to  incorporeal  hereditaments,  as  leases  of  [H6] 
tithes,  tlic  possession  of  the  excaitor  is  necessarily  constructive,  be- 
cause on  them  there  can  be  no  entry.  At  the  instant  therefore  that 
the  tithes  are  set  out,  in  a  place  however  remote,  he  shall  be  pos- 
sessed of  tliem  in  contemplation  of  lavv(^^). 

If  the  lease  be  of  a  rectory,  consisting  not  only  of  tithes,  but  also 
of  glebe  lands,  then  it  appears  that  the  executor  is  not  in  possession 
of  the  tithes,  ui'iless  he  enter  upon  the  lands(A). 

The  executor  of  tenant  from  year  to  year,  of  an  estate  under  the 
annual  value  of  ten  pounds,  may  gain  a  settlement  by  residing  on  it 
for  forty  days('/).(l) 

(g)  Off.  Ex.  108,  109.     11  Vin.  Abr.  (Q  The  King  v.  the  Inhabitants  of 

210.  StoTIe,  G  Term  Rep.  29. 

(/O  Off.  Ex.  109. 


(1)  By  the  laws  agreed  upon  in  England,  it  was  provided  "  tiiat  all  lands  and  goods 
shall  be  liable  to  pay  debts,  except  where  there  is  legal  issue,  and  then  all  the  goods  and 
one-tliird  of  the  land  only.''  (Prov.  Laws,  App.  4th  edit.  1775.  5  Sm.  Law's,  41G.)  The 
act  of  1700  (Purd.  Dig-.  26'2,  1  Dall.  Laws,  12)  and  1705  (Purd.  Dig.  264;  1  Dall.  Laws, 
267,  1  Sm.  Laws,  57)  subjected  all  lands,  teiu;ments,  hereditaments  whatsoever,  of  a  de- 
cedent to  be  sold  for  his  debts,  upon  a  deficiency  of  the  personal  estjite.  And  this  liability 
has  been  held  to  extend  to  lands  in  the  hands  of  a  Z»o?!a_/!</t*  purchaser  from  the  heir.  Graff 
V.  Smith's  Adm.  1  Dall.  4S1.  Morris's  Lessee  v.  Smiih,l  Yeates,  2.38.  4  Dall.  Rep.  119. 
And  lands  being  liable  in  the  same  manner  as  chattels,  there  is  no  necessity  for  a  scire 
facias  against  the  heir  and  terre  tenants  to  revive  a  judgment  obtained  against  the  testator, 
nor  can  tlie  executor  i)lead  to  a  scire  facias  against  him,  that  there  are  terre  tenants  whose 
lands  are  also  bound  by  the  judgment,  so  as  to  oblige  the  plaintift'  to  sue  out  a  scire  facias 
against  them.  Jf'ilson  v.  Jf'atson,  1  Peters's  Rep.  C.  C.  269.  The  act  of  4th  April,  1797, 
sect.  4  (Purd.  Dig.  533,  4  Dall<  Laws,  157,  3  Smith's  Laws,  297),  recites,  that  "whereas 
inconveniences  may  arise  from  the  debts  of  deceased  persons  remaining  a  lien  on  their 
lands  and  tenements,  an  indefinite  period  of  time  after  their  decease,  whereby  bona  fide 
purchasers  may  be  injm-ed,  and  titles  become  insecure,"  and  then  provides,  "  that  no  such 
debts,  except  they  be  secured  by  mortgage,  judgment,  recognizance,  or  other  record,  shall 
remain  a  lien  on  said  lands  and  tenements  longer  than  seven  3'ears  after  the  decease  of 
such  debtor,  unless  an  action  for  the  recovery  thereof  be  commenced  and  duly  prosecuted 
against  his  or  her  heirs,  executors,  or  administrators,  within  the  said  period  of  seven  years, 
or  a  copy  or  particular  written  statement  of  any  bond,  covenant,  debt  or  demand,  where 
the  same  is  not  payable  within  the  said  period  of  seven  j'ears,  shall  be  filed  within  the 
said  period  in  the  office  of  the  prothonotary  of  the  county  where  the  lands  lie:  Provided 
always.  That  a  debt  due  and  owing  to  a  person,  who  at  the  time  of  the  decease  of  such 
debtor  is  ^  feme  covert,  in  his  or  her  minority,  7ion  compos  mejitis,  in  prison,  or  out  of  the 
limits  of  the-United  States,  shall  remain  a  lien  on  the  said  lands  and  tenements,  (notwith- 
standing the  said  term  be  expired,)  until  four  years  after  discoverture,  or  such  person  shall 
have  arrived  at  the  age  of  twenty-one  years,  be  of  sound  mind,  enlarged  out  of  prison,  or 
return  into  some  one  of  the  United  States  of  America." 

Upon  the  construction  of  this  act  it  has  been  determined,  that  the  debts  of  a  deceased 
person  remain  a  lien  on  his  real  estate  for  set-e/i  years,  and  if  a  suit  for  the  recovery 
thereof  is  commenced  immediately  before  the  seven  years  expire,  the  lien  is  thereby 
continued  for  five  years  longer;  and  it  is  not  necessary,  if  the  debt  be  reduced  to  judgment 
after  his  decease,  to  revive  it  b)'  scire  facias,  in  order  to  preserve  its  lien  on  the  decedent's 
real  estate.  Trevor's  Jldm.  v.  EUenberger's  Ex.  2  Penns.  Rep.  94.  So  it  has  qlso  been 
decided,  that  tlie  protection  extends  only  to  the  estate  in  the  hands  of  a  60710  fide  purcha- 
ser, and  not  in  the  hands  of  an  executor  who  has  himself  become  a  purchaser  at  his  own 


CHAP.  II.]  IN  CHATTELS  REAL.  .  146 

sale,  so  that  upon  principles  of  public  policy,  the  sale  is  voidable,  the  doctrine  being,  that 
as  between  creditors  and  the  estate,  •\vhile  the  estate  remains  the  property,  legally  or  equi- 
'  tably  of  the  decedent,  the  lien  is  unlimited.    Brnch  v.  Lautz,  2  Rawle,  392. 

'The  case  oiJlIillerw  Stout,  2  P.  A.  Browne's  R^p.  294,  involved  a  question  between  the 
executor  of  the  testator,  who  had  sold  certain  lands  by  virtue  of  a  power  in  the  will,  and 
certain  creditors  by  mortgage  and  judgment  of  one  of  the  devisees  of  the  residue  of  the 
real  estate  after  the  debts  of  the  testator  should  be  paid.  The  facts  of  the  case  were 
these: — Peter  Hinckle  by  his  will,  after  several  devises  of  parts  of  his  real  estates,  and 
bequests  of  his  personal  property,  gave  his  executors  power  to  sell  as  much  of  his  re- 
maining lands  as  should  be  sufficient  to  pay  his  debts.  Instead  of  selling,  an  arrangement 
was  made  between  the  executors,  and  the  residuary  devisees,  by  wliicli  each  devisee  was 
to  have  his  part  upon  paj'ing  his  portion  of  the  debts,  and  all  but  one  complied  with  the 
terms  of  the  arrangement,  and  he  in  addition  to  his  non-compliance,  executed  two  mort- 
gages of  his  interests,  and  gave  a  bond,  on  which  judgment  was  entered,  to  a  creditor,  and 
afterwards  the  executor  sold  by  virtue  of  the  power.  The  Court,  in  determining  to 
whom  the  proceeds  of  the  sale  should  go,  the  money  having  been  paid  into  Court,  were 
of  opinion  tliat  by  the  provisions  of  the  will  the  debts  of  the  testator  were  a  lien  or  charge 
upon  the  lands  designated  as  the  fund  for  the  payment  of  his  debts  by  the  testator;  that 
any  person  claiming  under  the  devisees  must  take  subject  to  that  lien,  notwithstanding  the 
provisions  of  the  4th  sect,  of  the  act  of  April  4th,  179";  and  that  there  was  nothing  to  re- 
strain the  executor  from  selling  after  tlie  expiration  of  seven  years  from  the  death  of  the 
testator.  They  therefore  ordered  such  amount  as  was  claimed  for  the  payment  of  the 
testator's  debts  be  paid  to  the  executor,  and  the  balance  to  the  mortgagee. 

If  a  devisee,  or  one  of  the  heirs,  loses  his  lands  by  an  execution  for  a  debt  of  the  tes- 
tator, he  is  entitled  to  contribution  from  the  owners  of  the  remaining  part  of  the  testator's 
lands  (Per  Tilghman,  C.  J.  2  Binn.  299),  though  they  may  be  purchasers  for  a  valuable 
consideration.  Graff  v.  Smith's  Adm.  1  Dall.  Rep.  481.  The  mode  of  obtaining  contri- 
bution, when  such  a  case  occurs,  has  not  been  settled  by  decision;  and  the  doctrine  of  con- 
tribution itself,  as  respects  the  contribution  to  be  made  where  there  are  several  purcha- 
sers of  several  tracts  of  land,  the  estate  of  one  of  whom  has  been  sold  on  a  judgment 
binding  the  lands  of  all,  is  said  to  be  "  untrodden  ground  covered  with  difficulties."  f  10 
Serg.  &c  Rawle,  453.)  In  such  a  case  as  has  been  last  mentioned  it  was  decided,  that  the 
purchaser  whose  tract  had  been  sold,  thereby  satisfying  the  execution,  could  not  maintain 
assumpsit  against  another  purchaser  for  contribution.  JVailer  Ex.  t.  Stanley,  10  Serg.  & 
Rawle,  450.  ' 

By  the  act  of  1st  April,  1811,  sect.  2  (Purd,  Dig.  617,  5  Sm.  Laws,  257),  "  in  all  cases 
after  the  final  settlemenl  of  an  administration  account  in  th?  Orphan's  Court,  if  it  shall 
appear  that  there  are  not  sufficient  assets  to  pay  and  satisfy  the  balance  appearing  to  be 
due  and  owing  fromtlie  estate  of  the  deceased,  it  shall  be  lawful  for  the  said  Court,  on  the 
application  of  the  executors  or  administrators,  or  any  others  interested  therein,  to  make 
an  order,  that  so  much  of  the  real  estate  of  which  the  deceased  was  seised  or  possessed  at 
the  time  of  his  decease,  shall  be  sold  by  the  executors  or  administrators,  as  in  the  judg- 
ment of  the  Court  shall  be  sufficient  to  pay  such  balance;  and  the  Court  shall  likewise  de- 
cree in  such  cases,  what  contribution  sliall  be  made  by  the  heirs  or  devisees  respectively, 
towards  the  paj  ment  of  any  de|),ts  ehargeable  on  the  real  estate  of  any  testator,  either 
generally  in  the  first  instance,  .or  where  the  land  decreed  to  be  sold,  shall  have  been  in 
any  manner  devised  to  any  heir  or  devisee,  after  such  sale  being  made."  Under  this  act 
the  Orphan's  Court  has  power  to  order  a  sale,  for  the  payment  of  del)ts  of  the  intestate, 
upon  the  application  of  one  of  several  administrators  who  has  settled  a  final  account. 
£ickle,  Adm.  v.  Young,  3  Serg.  8c  Rawle,  235.  Tlicrc  exists  a  similar  provision,  as  to 
power  to  sell,  in  the  act  of  29th  March,  1832,  sect.  31  (Pamjih.  Laws,  199),  but  tlie  order 
to  sell  is  to  be  granted  "  on  the  application  of  the  executor  or  administrator." 

A  purchaser  under  a  sale  by  order  of  tlie  Orplian's  Court,  takes  tlioland  discharged  from 
the  lien  of  the  intestate's  debts,  and  from  tlie  lien  of  judgments  (whicli  are  to  be  paid  out 
of  the  proceeds  of  sale  according  to  tlicir  priority  in  date,  Girardy.  JSPDcvmoU,  jldm.  5 


14Q  .         OF  THE  executor's  INTEREST.        [bOOK  II. 


Sect.  II. 

Of  his  interest  in  the  chattels  personal,  anitnate,  vegetable,  and 

inanimate. 

Secondly.  Chattels  personal  are  such  things  as  are  annexed  to, 
or  attendant  on  the  person  of  the  owner;  and  these,  by  the  civil  law, 
are  denominated  moveable.  They  arc,  also,  to  be  distin[147]guished 
into  animate,  vegetable,  and  inanimatc(tf). 

The  animate  are  also  divided  into  such  as  are  domitx,  and  such 
as  arc  ferse  naturse,  some  being  of  a  tame  and  others  of  a  wild  dis- 
position. Those  of  a  nature  tame  and  domestic,  as  sheep,  horses, 
kine,  bullocks,  poultry,  and  the  like,  arc  capable  of  an  absolute  prop- 
erty, and  are  transmissible  like  all  other  persolial  chattels,  to  an  ex- 
ecutor. Those  of  a  wild  nature,  as  deer,  hares,  rabbits,  pigeons, 
pheasants,  partridges,  and  hawks,  admit  only  of  a  qualified  ownership. 
Therefore,  unless  they  are  reclaimed,  that  is,  rendered  tame  by  art, 

(a)  2  Bl.  Com.  387.  389.     Off.  Ex.  55,  5G,  57. 


Serg.  &  Rawle,  128),  but  not  from  the  lien  of  mortgages.  Moliere's  Lessee,  v.  JVoe,  4  Dall. 
Rep.  450,  H  Serg.  k  Rawle,  432.  The  purchaser,  however,  is  bound  to  see  that  the  pro- 
ceedings in  the  Orphan's  Court  are  so  far  regular  as  to  authorize  a  sale.  Messaiger  v. 
Kintner,  4  Binn.  97.  Siiyder^s  Lessee  v.  Snyder,  6  Binn.  483.  Larimer\<i  Lessee  v.  Jr- 
■win,  cited  4  Binn.  104;  stated  2  Serg.  h  Rawle,  7.  The  proceedings  of  tlie  Orphan's 
Court  are  not  conclusive,  but  may  be  tested  in  ejectment.  Messenger  v.  Kintner,  Snyder's 
Lessee  v.  Snyder:  but  whenever  such  sales  are  called  in  question,  every  presumption  is 
made  by  the  Courts  in  favour  of  tlieir  regularity,  and  it  lies  on  the  party  impugning  them 
to  show  their  irregularity.  M'Pherson  v.  Cunliff,  11  Serg.  &  Rajvle,  422.  And  it  is  now 
settled,  tliat  though  the  decrees  of  the  Orphan's  Court  may  be  controverted  where  it  ex- 
ceeds its  jurisdiction,  yet  where  it  is  acting  within  its  jurisdiction,  the  truth  of  what  is  as- 
serted on  its  records  cannot  be  denied  in  a  collateral  proceeding,  nor  its  decrees  questioned, 
except  in  cases  of  fraud,  or  where  the  defect  plainly  appears  on  the  face  of  the  proceedings. 
Kennedy  v.  Wachsmuth,  12  Serg.  &.  Rawle,  171.  President  of  the  OrpIian''s  Court,  &c. 
v.  Grof,  14  Serg.  &  Rawle,  181.  And  by  the  2d  sect,  of  the  act  of  29th  March,  1832, 
"  relating  to  Orphan's  Courts,"  "  the  Orphan's  Court  is  declared  to  be  a  Court  of  Record, 
with  all  the  qualities  and  incidents  of  a  Court  of  Record  at  common  law;  its  proceedings 
and  decrees,  in  all  matters  within  its  jurisdiction,  sliall  tiot  be  reversed,  or  avoided  col- 
laterally in  any  other  Court,  but  they  shall  i)e  liable  to  reversal,  modification,  or  altera- 
tion, on  appeal  to  the  Supreme  Com't."     (Paniph.  Laws,  196.) 

The  s\n-plus  of  lands  sold  under  execution  is  to  be  paid  to  the  executor  or  administra- 
tor, in  whose  hands  it  is  assets  for  the  payment  of  other  debts;  but  where  there  are  no  debts, 
the  heir  is  entiUed  to  it,  and,  upon  making  out  a  proper  case,  the  money  will  be  ordered 
to  be  paid  into  Court  by  the  sheriff,  and  when  brought  in,  the  Court  will  take  care  so  to 
disi)Ose  of  it  as  to  do  justice  to  the  heir,  and  providing  for  the  safety  of  creditors,  if  any 
shoidd  in  future  appear;  but  the  sheriff  is  justified  in  paying  the  money  to  the  administra- 
tor, unless  he  receive  notice  frOm  the  heir.  Giiier  v.  Kelly,  2  Binn.  298.  Cmnm.  v. 
Rahm,  2  Serg.  k  Rawle,  375. 


CHAP.  II.]  IN  CHATTELS  PERSONAL.  147 

industry,  and  education,  or  confined  so  that  they  cannot  escape,  and 
enjoy  their  natural  liberty,  or,   unless  they  are  incapajjle,  through 
weakness,  of  flying  or  running  away,  they  are  nullius  in  bonis,  not 
regarded  in  the  light  of  private  property,  and  consequently  cannot 
pass  to  representatives(6).     But  the  animals  I  have  just  enumerated, 
provided  they  are  tame,  shall  belong  to  the  executor.     He  shall  also 
be  entitled  to  them,  although  not  tame,  if  they  be  taken,  and  kept 
alive  in  any  room,  cage,  or  other  receptacle(c).     Nor  can  an  abso- 
lute property  exist  in  fish  at  large  in  the  water;  but  fish  in  a  trunk 
shall  go  to  the  executor((i).     Also,  hawks,  herons,  and  other  birds, 
rabbits  and  other  creatures,  in  [148]  nests,  or  burrows,  if  too  young 
to  fly,  or  run  away,  are  all  to  be  classed  among  personal  chattels(e). 
Of  the  same  description  are  hounds,  greyhounds,  and  spaniels,  and 
as  accessary  to  such  chattels,  a  hunter's  horn,  and  a  falcolner's  lure. 
And  since  the  executor's  interest  is  co-extensive  with  that  which 
was  vested  in  the  testator,  the  property  in* all  his  animals,  however 
minute  in  point  of  value,  shall  go  to  the  executor,  as  house-dogs,  fer- 
rets, and  the  like(^);.  or  although  they  were  kept  only  for  pleasure, 
curiosity,  or  whim,  as  lap-dogs,  squirrels,  parrots,  andsinging-birds(A). 
An  executor  shall  likewise  be  entitled  to  deer  in  a  park,  hares  or 
rabbits  in  an  enclosed  warren,  doves  in  a  dove-house,  pheasants  or 
partridges  in  a  mew,  fish  in  a  private  pond,  and,  according  to  Brac- 
ton,  to  bees  in  a  hive;  if,  as  we  have  before  seen(z),  the  testator  were 
lessee  for  years  of  the  premises  to  which  they  respectively  belong(y). 
These  various  animals  are  no  longer  the  property  of  an  individual, 
or  transmissible  to  his  representative,  than  while  they  continue  in 
his   possession.     If  they  obtain  their  natural  freedom,  his  proper- 
[149]  ty  instantly  ceases,  unless  they  have  animum  revertendi,  which 
is  to  be  known  only  by  their  custom  of  returning.     The  law,  there- 
fore, extends  this  possession  farther  than  the  mere  manual  occupa- 
tion.    The  qualified  property  in  a  tame  hawk  is  not  divested  by  his 
pursuing  his  quarry  in  the  presence  of  the  sportsman,  nor  in  pi- 
geons, especially  of  the  carrier  kind,  by  their  flying  at  a  distance  from 
their  home;  nor  in  deer,  by  their  being  chased  out  of  a  park,  or  for- 
est; nor  in  bees,  by  their  flying  from  the  hive,  if  they  are  immedi- 
ately pursued  by  the  keeper,  forester,  or  owner.     If  they  stray,  or 
fly  without  the  knowledge  of  the  owner,  and  returrr  not  in  the  usual 
manner,  they  are  free,  and  open  to  the  first  occupant.     But  if  a  deer, 
or  any  wild  animal  reclaimed,  hath  a  collar  or  other  mark  put  upon 
him,  and  goes  and  returns  at  his  pleasure,  the  owner's  property  in 
him  still  continues;  but,  if  the  deer  has  been  long  absent  without  re- 
turning, such  property  shall  cease(A;). 

(i)  2  Bl.  Com.  390,  391.  Com.  Dig.  (Ji)  2  Bl.  Com.  393. 

Biens.  A.  2.  li)  Supr. 

(c)  Off.  Ex.  53,  57.  0)  2  Bl.  Com.  393.     Off.  Ex.  53. 

Id)  Ibid.  53.     2  Bl.  Com.  392.  Har^r.  Co.  Liu.  H,  note  10. 

(e)  Off.  Ex.  57.     2Bl.Com.  391.  (/.)  2  Bl.  Com.  392.     Com.  Dig. 

(/)  Ibid.  53,  57.  Biuns.  F.    7  Co.  17  b. 

Ig)  3  Bac.  Abr.  57.     Off.  Ex.  58. 


149  OF  THE  executor's  INTEREST        [bOOK  II. 

Personal  effects,  of  a  vegetal^lc  nature,  are  the  fruit,  or  other  parts 
of  a  plant  ox  tree,  when  severed  from  the  hody  of  it,  or  the  whole 
plant  or  tree  itself,  when  severed  from  the  ground;  as  apples  or 
pears,  which  are  gathered  or  fallen,  grass  which  is  cut,  and  trees,  or 
their  branches,  which  are  felled  or  lopped(/). 

There  are,  also,  various  vegetables,  styled  in  law  emblements, 
[150]  whicharedeemed  personal,  and  go  to  the  cxecutor,althoughthey 
are  affixed  to  the  soil.  They  are  so  classed  when  they  are  raised 
annu&lly  by  labour  and  manurance,  which  are  considerations  of  a  per- 
sonal nature.  The  appellation  o£  emblements,  properly  speaking, 
signifies  the  profit  of  sown  land,  but,  in  a  larger  sense,  it  extends  to 
roots  planted,  or  other  annual  artificial  profit:  it  includes  corn  grow- 
ing,(l)  hops,  saffron,  hemp,  flax,  and,  as  it  seems,  clover,  saint-foin, 
and  every  other  yearly  production  in  which  art  and  industry  must 
combine  with  nature(w). 

On  the  same  principle  'melons,  cucumbers,  artichokes,  parsnips, 
carrots,  turnips,  and  the  like,  belong  to  the  executor(7i).  The  ex- 
ecutor of  a  tenant  for  life  has  also  been  held  entitled  to  hops,  although 
growing  on  ancient  roots,  as  in  the  nature  of  emblements,  in  respect 
of  the  cultivation  which  is  necessary  to  produce  them(o).(2).  Ma- 
nure, in  a  heap,  before  it  is  spread  on  the  land,  is  also  a  personal 
chattel(7;). 

Personal  chattels  inanimate  are  household  goods,  merchandize, 
money,  pictures,  jewels,  garments;  in  short,  every  thing  not  inclu- 
ded in  the  former  classes,  that  can  be  properly  put  in  motion, 
[151]  and  transferred  from  one  place  to  another(^). 

There  are,  also,  some  other  interests,  which  fall  under  the  descrip- 
tion of  personal  chattels.  Of  this  species  is  the  testator's  property  in 
the  public  funds. 

The  next  advowson,  before  it  becomes  void,  as  I  have  already 
stated,  is  a  chattel  real,  but,  after  an  avoidance,  it  is  a  chattel  per- 
sonal(/'). 

The  executor  also  has  an  interest  in  the  person  of  a  debtor,  in  ex- 
ecution at  the  testator's  suit;  and  without  the  executor's  assent,  the 
party  cannot  be  discharged.  This  interest  is  in  the  nature  of  a  per- 
sonal chattel,  inasmuch  as  the  debtor  is  merely  a  pledge  to  secure 
the  debt(.s).     So,  a  prisoner  taken  in  war  is  of  the  same  species  in 

(/)  2  Bl.  Com.  389.     Off.  Ex.  59.  (o)  Harg.  Co.  Litt.  55b.  note  1.  Cro. 

(m)  2  Bl.  Com.  122,  123.     Termes  Car.  515. 

de  la  ley  Embl.  Off.  Ex.  59.     4  Burn.  (p)  11  Vin.  Abr.  175.     Sty.  66. 

Eccl.  L.  255.    Com.  Dig.  Biens.  G.  1.  (q)  2  Bl.  Com.  387, 389.     Off.  Ex. 

Harg.  Co.  Litt.  55  b.  Anon.  2  Freem.  57. 

210.  (r)  11  Vin.  Abr.  173.     Off.  Ex.  54. 

{n)  4  Burn.  Eccl.  254.    2  Bl.  Com.  73. 

123.     Roll.  Abr.  728.  (s)  3  Bac.  Abr.  57.     Off.  Ex.  56. 


(1)  See  Smith  v.  Johnson,  1  Penns.  Rep.  471,  and  the  cases  tlierc  cited.    Seealso  John- 
sony.  Smith,  3  Penns.  Rep.  496. 

(2)  Thompsoii's  Adm.  v.  Tlwmpson's  Ex.  6  Muiif.  514. 


CHAP.  II.]  IN  CHATTELS  PERSONAL.  151 

respect  of  his  ransom,  and,  on  the  captor's  death,  shall  go  to  his  ex- 
ecutor(/).  Such,  also,  seems  the  interests  in  negro  servants,  pur- 
chased when  captives  of  the  nations  with  whom  they  are  at  war; 
though  accurately  speaking,  this  property  of  the  purchaser  (if  it  in- 
deed continue)  consists  rather  in  their  perpetual  service,  than  in  their 
bodies  or  persons;  but,  such  as  it  is,  it  vests  equall)'  in  the  executor(w). 

[152]  In  genei'al,  however,  a  servant  is  legally  discharged  by  the 
death  of  his  master,  and  the  executor  has  no  claim  to  his  service(i'). 
(1)  Nor  has  an  executor  any  interest  in  an  apprentice  bound  to  the 
testator.  The  contract,  in  regard  to  instruction,  is  in  its  nature 
merely  personal,  and  dies  with  the  master.  Yet  although  an  ap- 
prentice be  not  strictly  transmissible,  if,  with  the  consent  of  all  par- 
ties, and  his  own,  he  continue  with  the  executor,  it  is  a  continuation 
of  the  apprenticeship(io);  provided,  in  the  case  of  a  trade,  it  be  of 
the  same  species(a'). 

An  interest  in  the  testator's  literary  property  may  devolve  on  the 
executor  pursuant  to  several  statutes(y).(2)  An  interest  may,  like- 
wise, vest  in  him  by  virtue  of  a  patent  granted  to  the  testator,  for  the 
invention  of  a  new  manufacture  within  the  realm(z).(3) 

It  seems,  also,  that  a  caroome,  or  a  license  by  the  Mayor  of  Lon- 
don to  keep  a  cart,  is  a  chattel  interest,  and  belongs  to  the  executor(a). 

The  interest,  in  all  these  chattels  is,  at  the  instant  of  the  tes- 
tator's death,  vested  in  the  executor;  and  from  the  death  of  the 
[153]  intestate,  by  relation,  in  the  administrator,  whether  he  has  re- 
duced them  into  his  actual  possession,  or  not,  and  however  widely 
dispersed,  or  remotely  situated,  they  are  regarded  in  law  as  assets  in 
his  hands(c).  Therefore,  where  the  jury  found  assets  in  Ireland,  the 
stating  of  them  on  the  special  verdict  to  be  in  Ireland,  was  holden 

(0  Off.  Ex.  56.     2  Bl.  Com.  402.  (x)  Vid.  stat.  5  Eliz.  c.  4.     1  B]. 

Bro.  Abr.  tit.  Propertie  18.     L.  of  Test.  Com.  427,  428,  et  infr. 

378.  (j/)  Stat.  8  Ann.  c.  10.     15  Geo.  3. 

(u)  2  Bl.  Com.  403.     Chamberlain  c.  53.     8  Geo.  2.  c.  13.     7  Geo.  3.  c. 

V.  Harvey,  Carth.  396.  Ld.  Raym.  147.  38.     17  Geo.  3.  c.  57. 

Smith  V.  Gould.  Salk.  667.  (2)  Stat.  21  Jac.  1.  c.  3. 

(t>)  Off.  Ex.  56.  (a)     11  Vin.  Abr.  151.     Com.  Dig. 

(w)  Baxter  v.  Buriield,  Stra.  1115,  Biens.  B.     Hunt  v.  Hunt,  2  Vern.  83. 

1266.     Rex  v.  Stockland,  Dougl.  70.  (c)  Off.  Ex.  108,109.     3Bac.  Abr. 

1  Burn.  Just.  82  et  seq.      2   Ves.   35.  57.     Roll.  Abr.  921. 
sed.  vid.     Off.  Ex.  53,  56. 


( 1 )  In  Pennsylvania,  executors  and  administrators,  upon  the  death  of  any  master  or  mis- 
tress Ijefore  the  expiration  of  the  term  of  any  apprenticesliip,  may,  provided  the  term  of 
the  indenture  extend  to  executors  or  administrators,  assign  over  the  remainder  of  the 
term  of  such  apprenticeship  to  sucli  suitable  person  of  the  same  trade  or  calling  men- 
tioned in  the  indenture,  as  shall  be  approved  of  by  the  Court  of  Quarter  Sessions  of  the 
county  where  the  master  or  mistress  lived.  Act  of  11th  April,  1799.  (Purd.  Dig.  12.  4 
Dall.  Laws,  475.    3  Sm.  Laws,  385.)    Keimechj  v.  Savugc,  2  P.  A.  Browne's  Rep.  178. 

(2)  Act  of  Congress  of  3(1  Feb.  1831  (Pampb.  Laws,  11),  re])ealing  tlie  acts  of  Congress 
of3Ist  May,  1700,  and  2'Jtb  April,  1802.     Ingersoll's  Dig.  (.aws  U.  S.  14<J,  151. 

(3)  Acts  of  Congress  of  21st  Feb.  17'J3,  and  April  17tli,  1800.     Ingersoll's  Dig.  65G.  CCO. 

14 


153  OF  THE  executor's  INTEREST         [bOOK  II. 

surplusagc(^/).  So,  if  an  executor  live  in  London  and  have  left 
goods  in  Bristol,  he  hath  such  an  immediate  possession  of  the  goods, 
that  he  may  maintain  trover  for  them  in  his  own  name(e).  In  like 
manner  he  shall  be  deemed  to  be  in  possession  of  a  ship  at  sea.  In 
short,  in  whatever  part  of  the  world  the  testator  hath  left  effects,  the 
executor,  whether  in  the  manual  occupation  of  them,  or  not,  is  deemed 
to  all  intents  and  purposes  the  possessor  in  point  of  law(y).  And, 
even  if  goods  be,  in  fact,  taken  out  of  his  possession,  after  he  has  ad- 
ministered, legally  lie  is  not  divested  of  them;  they  are  still  esteemed 
assets  in  his  hands(^). 

But,  to  give  the  executor  a  title,  or  to  constitute  assets,  the  abso- 
lute property  of  such  chattels  must  have  been  vested  in  the  testator; 
and,  therefore,  if  A.  take  a  bond  in  trust  for  B.  and  die,  it  [154]  shall 
form  no  part  of  the  assets  of  A.  (A).  So,  if  the  obligee  assign  a  bond, 
and  covenant  not  to  revoke  the  assignment,  the  bond  shall  not  be  in- 
cluded among  his  asscts(^). 

Nor  shall  goods,  bailed  or  delivered  for  a  particular  purpose,  as  to 
a  carrier  to  convey  to  London,  or  to  an  innkeeper  to  secure  in  his 
inn,  be  assets  in  the  hands  of  their  respective  executors.  Nor,  till 
the  time  for  redemption  is  past(/t),  shall  goods  pledged  or  pawned  in 
the  hands  of  the  executor  of  the  pawnee,  nor  goods  distrained  for 
rent  or  other  lawful  cause,  be  regarded  as  the  assets  of  the  party  dis- 
training. Nor,  if  the  testator  were  outlawed  at  the  time  of  his  death, 
shall  his  effects  be  so  considered(/). 

If  A.  consent  to  a  disposition  of  the  goods  of  the  intestate,  and  af- 
terwards take  out  administration,  he  shall  be  bound  by  the  antece- 
dent gift(.m):  but,  if  the  executor  make  a  fraudulent  gift  of  them, 
they  shall  continue  assets(?i). 

Such  deeds  and  writings  as  relate  to  terms  for  years,  or  other  chat- 
tels, or  are  securities  for  debts,  belong  to  the  executor(o). 

[155]  Also  the  property  in  the  coffin,  shroud,  and  other  apparel 
of  the  dead  body,  remains  in  the  executor(7j). 

Chattels,  whether  real  or  personal,  may  be  held  not  only  in  seve- 
ralty, but  also  in  joint  tenantcy.  Thus,  if  a  lease  for  years  be  grant- 
ed, or  a  horse  be  given,  to  two  or  more  persons  absolutely,  they  are 
joint  tenants  of  it;  and  unless  the  jointure  be  severed,  it  shall  be  the 

{d)  6  Co.  46  b.  11  Vin.  Abr.  230.  (i)  Ibid. 

,  (e)  3  Bac.  Abr.  58,  in  note.  Jenkins  {k)  Vid.  Shep.  Touchsf.  496. 

V.  Plombe,  6  Mod.  181.     R.  in  evi-  (/)  2  Bl.  Com.  395,  396.     3  Bac. 

dence  by  Holt,  C.  J.     Bolland  et  Ux.  Abr.  58.     Shep.  Touchst.  498. 

Admx.  V.  Spencer,  7  Term  Rep.  358.  (m)  Com.  Dig.  Admon.  B.  10.     Per 

Munt  V.   Stokes,  4  Term    Rep.    563.  two  Just.  Holt,  C.  J.   contr.     White- 

Sed.  vid.    Cockerill  et  Ux.   extx.   v.  hall  v.  Squire,  1  Salk.   295.      S.  C.  3 

Kynaston,  4  Terra  Rep.  277.  Salk.  161.    S.  C.  Carth.  103.    S.  C. 

(/)  3  Bac.  57.     11    Vin.  Abr.  230.  Skin.  274.  S.  C.  3  Mod.  276.  vid.  infr. 

240.     Shep.  Touchst.  496.  («)  3  Bac.  Abr.  58.    Cro.  Eliz.  405. 

ig)  Off.  Ex.  113.     Off.  Ex.  Suppj.  (o)  3  Bac.  Abr.  65.     Off.  Ex.  63. 

56.     5  Co.  33  b.     11  Vin.  Abr.  230.  Jones  v.  Jones,  3  Bro.  Ch.  Rep.  80. 

(A)  3    Bac.    Abr.   58.      Deering   v.  (/;)  2  Bl.  Com.  429. 
Torrinffton,  Salk.  79. 


CHAP.  II.]  IN  CHATTELS  PERSONAL.  155 

exclusive  property  of  the  survivor(^).  If  the  jointure  be  severed,  as 
by  either  of  them  assigning  his  interest,  or  selling  his  share,  the  as- 
signee or  vendee,  and  the  remaining  lessee  or  part  owner,  shall  be 
tenants  in  common  without  any  jus  accrescendi,  or  right  of  survivor- 
ship(r).  So  if  a  sum  of  money  be  given  by  will  to  two  or  more, 
equally  to  be  divided  between  them,  they  shall  be  tenants  in  com- 
mon(6').  On  the  principle  also  of  encouraging  husbandry,  and  com- 
merce, stock  on  a  farm,  although  occupied  jointl}',  or  stock  of  a  part- 
nership in  trade,  shall  always  independently  of  any  express  contract 
to  that  effect,  be  considered  as  common,  and  not  as  joint  property; 
and  therefore  in  these  instances  there  shall  be  no  survivorship,*  but 
the  interest  of  the  party  dying  shall  vest  in  his  executor(^).  At  law, 
it  is  true,  the  remedy  [156]  survives,  yet  the  duty  does  not  survive; 
and,  therefore,  if  one  of  two  joint  merchants  die,  the  action  for  money 
due  to  them,  survives  for  the  survivor,  and  the  executor  of  the  de- 
ceased cannot  join  in  an  action.  But  the  survivor,  on  recovery,  is 
liable  to  an  action  of  account  by  the  executor(?<).  Such  actions, 
however,  are  in  a  great  measure  superseded,  by  tlie  more  effectual  ju- 
risdiction of  a  court  of  equity  in  matters  of  account. 

Chattels  personal  in  the  hands  of  an  executor  may,  in  certain 
cases,  be  changed  into  chattels  real,  and  so  vice  versa;  as,  if  a  debt 
be  due  to  J.  S.  as  executor,  on  statute,  recognizance,  or  judgment, 
and  he  sue  out  execution,  and  take  the  lands  of  the  debtor  in  extent, 
the  personal  duty  is,  in  that  case,  converted  into  a  chattel  real:  on 
the  other  hand,  if  such  estate  by  extent,  or  a  mortgaged  term,  de- 
volve on  an  executor,  and  the  debtor  or  mortgagor  pay  the  money 
due,  such  chattels  real  are  turned  into  chattels  personal(y). 

(9)  Bl.  Com.  399.     Com.  Dig.  Es-  Merchant  D.    Harg.  Co.  Litt.  182,  and 

tates.  K.  Litt.  S.  281.    Harg.  Co.  Litt.  note  4.     2  Brownl.  99.    Noy.  55.  Jef- 

46  b.  and  182,  note  1.     Lady  Shore  v.  fereys  v.  Small,  1   Vern.  217.     Kemp 

Billingsly,  1  Vern.  482.  v.  Andrews,  Carth.  170.     See  Lake  v. 

(r)  Litt.  S.  321.   Com.  Dig.  Estates.  Craddock,  3  P.  Wms.  161. 
K.  5.     Sym's  Case,  Cro.  Eliz.  33.  {11)  Martin   v.   Crump,    Salk.    444. 

(s)   1  Eq.  Ca.  Abr.  292.  Kemp  v,  Andrews,  Show.  188. 

(0  2  Bl.    Com.   399.     Com.  Dig.  (t<)  Off.  Ex.  75.     3  Bl.  Com.  420. 


157  OP  THE  executor's  interest  [book  ii. 


CHAPTER  III. 


OF  THE  INTEREST  OF  THE  EXECUTOR  OR  ADMINISTRATOR  IN  SUCH 
OF  THE  CHATTELS  AS  WERE  NOT  IN  THE  DECEASEd's  POSSESSION 
AT  THE  TIME  OF  HIS  DEATH. 


Sect.  1. 
Of  his  interest  in  choses  in  action. 

I  proceed  now  to  treat  of  such  of  the  testator's  effects  as  were 
not  in  his  possession  at  the  time  of  his  death;  and  in  this  class  I  am 
first  to  consider  choses,  or  things  in  action,  as  well  those  where  the 
cause  of  action  accrued  in  the  testator's  lifetime,  as  those  where  it 
accrued  after  his  death. 

In  regard  to  the  first,  the  executor  is  entitled  to  the  testator's  dehts 
of  every  description,  either  debts  of  record,  as  judgments,  statutes, 
and  recognizances;  or  debts  due  on  special  contracts,  as  for  rent;  or 
on  bonds,  covenants,  and  the  like  under  seal;  or  debts  on  simple 
contracts,  as  notes  unsealed,  and  promises  not  in  writing,  either  ex- 
press or  implied;  and  all  such  debts,  when  received  by  the  executor, 
shall  be  assets  in  liis  hands(«). 

[158]  An  executor  is  also  entitled,  pursuant  to  stat.  4  Ed.  3.  c. 
7,(1)  to  a  compensation  in  damages  for  a  trespass  committed  on  the 
testator's  goods  in  his  lifetime;  and  by  the  equity  of  that  statute,  for 
a  conversion  of  the  same,  or  for  trespass  with  cattle  in  his  close(/;); 
or  for  cutting  his  growing  corn,  which  is  a  chattel,  and  carrying  it 
away  at  the  same  time(c);  and  by  the  same  liberal  construction  of 
the  above-mentioned  statute,  the  executor  is  also  entitled  to  a  debt 
accrued  to  the  testator  under  the  stat.  of  2  and  3  Ed.  6.  c.  13,  for 
not  setting  out  tithes(^);  to  a  qucire  irnpedit,  for  a  disturbance  of  his 
patronage(e);  to  ejectment,  for  ejecting  him(/);  and,  in  short, 
to  every  other  injury  done  to  his  personal  estate  previous  to  his 
death. 

(a)  Off.  Ex.  G5.     3  Bac.  Abr.  59.  {d)  Holl  v.  Bradford,  1   Sid.  88. 

Com.  Dig.  Admon.  B.  13.  407.      Moreton's  case,    1    Ventr.   30. 

(i)  3  Bac.  Abr.  59.    Com.  Dig.  Ad-  Poph.  189. 

moil.  B.  13.     Off.  Ex.  70.     Lat.  168.  (e)  Off.  Ex.  66,  67. 

(c)  Emerson  v.  Emerson,  1  Ventr.  (/)  Poph.  189. 
187. 


(1)  In  force  in  Pennsylvania.     Roberts's  Dig.  248.     3  Binn.     7  Scrg.  &  Rawle,  184. 


CHAP.  III.]  IN  CHOSES  IN  ACTIO^I.  158 

An  executor  shall  also  have  damages  for  the  breach  of  a  covenant 
to  do  a  personal  thing(^);  and  although  the  covenant  sound  in  the 
realty,  as  for  not  assuring  lands,  yet  if  it  be  broken  in  the  testator's 
lifetime,  the  executor  shall  be  entitled  to  damages(A);(l)  and  the 
damages  in  any  of  these  cases,  when  recovered,  shall  be  regarded  as 
assets. 

So  the  executor  of  the  assignee  of  a  bail-bond  shall  recover  on 
[159]  that  instrument,  inasmuch  as  it  is  a  vested  interest(«). 

So  an  executor  is  entitled  to  damages  against  a  sheriff  for.  permit- 
ting a  party  in  execution  on  a  judgment  recovered  by  the  testator 
to  escape;  even  although  the  escape  happened  in  the  testator's  life- 
time(A;).  An  executor  may  also  demand  damages  of  a  sheriff  for 
not  returning  his  writ,  and  paying  money  levied  on  zfierefacias{l)} 
or  for  a  false  return  stating  that  he  had  not  levied  the  whole  debt, 
when  in  fact  he  had(w).  So  if  the  testator  in  his  lifetime  were  en- 
titled to  a  writ  of  error,  or  audita  querela,  or  to  the  antiquated 
remedies  of  attaint,  deceit  or  indentitate  nominis,  the  executor  has 
a  right  to  recover  such  compensation  as  the  testator  might  have 
claimed;  and  whatever  he  so  recovers  shall  be  assets  in  his  hands(?i). 
So,  an  executor  is  entitled  to  replevy  goods  of  the  testator(o);  or  to 
recover  damages  of  an  officer  for  removing  goods  taken  in  exe- 
cution before  the  testator,  who  was  the  landlord,  had  been  paid  a 
year's  rent(/»).  And,  in  general,  an  executor  has  a  right  to  a  com- 
pensation, whenever  the  testator's  personal  estate  has  been  damnified, 
and  the  wrong  remains  unredressed  at  the  time  of  his  death. 

[160]  But  an  executor  has  no  right  to  an  action  for  an  injury 
done  to  the  person  of  the  testator(5');  nor  for  a  prejudice  to  his  free- 
hold; as  for  felling  trees,  or  cutting  the  grass,  for  the  trees  and  grass 
are  parcel  of  the  same(r).(2) 

An  executor  shall  also  have  the  benefit  of  any  equitable  title  of  the 

{g)  Lat.  168.     3  Bac.  Abr.  59.  (/)  Com.  Dig.  Admon.  B.  13.   Spur- 

(/t)  Com.  Dig.  Admon.  B.  13.  Com.  stow  v.  Prince,  Cro.  Car.  297. 

Dig.  Covenant.  B.  1.     Lucy  v.  Lev-  {m)  Williams  v.  Crey,  1  Salk.  12. 

ington,  1   Ventr.  176.     lb.    Cooke  v.  («)  3  Bac.  Abr.  60.     Off.  Ex.  71. 

Fountain,  347.     Lucy  v.  Levington,  2  (o)  1  Sid.  83.     Off.  Ex.  66. 

Lev.  26.     Off.  Ex.  65.  (jd)  Com.  Dig.  Admon.  B.  13.    Pal- 

(/■)  Com.  Dig.  Admon.  B.  13.   For-  grave  v.  W'indbam,  Stra.  212. 

tes.  367.  (r/)  Lat.  168,  169.    1  And.  243.    Ma- 

(Jt)  Com.  Dig.  Admon.  B.  13.   Spur-  son  v.  Dixon,  Jon.  174. 

stow  V.  Prince,  Cro.  Car.  297.     Mod.  (r)  Emerson  v.  Emerson,  1  Ventr. 

Ca.  126.  187.     Off.  Ex.  68. 


(1)  Watson,  Adm.  v.  Blane  et  al,  12  Serg.  &  Rawle,  131.  And  an  adniiTiistrator  cum 
testamejito  annexo  may,  by  virtue  of  the  act  of  l'2th  March,  1800  (Purtl.  Dig.  277,  278), 
niaitiUiiii  ejectment  on  the  non-payment  by  the  vendee  of  the  purchase  money  of  lands 
sold  by  the  former  executor,  under  the  authority  of  the  will.  Cornell  v.  Great,  10  Sei-g. 
&  Rawle,  14. 

(2)  Nor  an  action  of  debt  for  the  penalty,  imder  the  act  of  2Slh  March,  1814  (Purd. 
Dig.  223),  establishing  the  fee  bill.     lieed  v.  Cisl,  7  Serg.  k  liawle,  183. 


IGO  OF  THE  executor's  INTEREST  [bOOK  II. 

testator  in  respect  to  personal  "property;  and  money  recovered  by 
the  executor  by  decree  in  a  court  of  equity  shall  be  assets(5). 

In  all  the  above-mentioned  cases,  I  suppose  the  cause  of  action 
to  have  accrued  before  the  death  of  the  testator.  But  where  it  ac- 
crues after  that  event,  the  executor  is  equally  entitled  to  the  debt  or 
damages. 

Therefore,  if  A.  contract  to  deliver  certain  goods  to  B.  on  a  cer- 
tain day,  and  they  are  not  delivered  in  the  lifetime  of  B.,  but  after 
his  death  to  his  executor,  he  shall  be  possessed  of  them  in  that  cha- 
racter, and  they  shall  be  assets  in  his  hands;  as  in  case  the  contract 
had  not  been'  performed,  damages  recovered  for  the  non-perform- 
ance would  have  been  so  considered(^).  So  if  A.  covenant  witli  B. 
to  grant  him  a  lease  of  certain  land  by  a  certain  day,  and  B.  die  be- 
fore the  day,  and  before  tlie  grant  of  the  lease,  A.  is  bound  to  grant 
it  to  the  executor  of  B.,  and  it  shall  be  vested  in  [161]  him  as  ex- 
ecutor and  consequently  be  assets(i<).  Or,  if  A.  refuse  to  grant  the 
lease,  he  is  liable  to  make  a  compensation  to  the  executor  of  B.  in 
damages,  which  shall  also  be  assets(i)). 

So  where  a  father  possessed  of  a  term  for  years  held  of  the  church, 
renewable  every  seven  years,  assigned  the  lease  to  his  son  in  trust 
for  himself  for  life,  remainder  in  trust  for  the  son,  his  executors,  ad- 
ministrators, and  assigns;  and  the  father  covenanted  to  renew. the 
lease  every  seven  years  as  long  as  he  should  live.  The  son  died  and 
the  seven  years  elapsed,  when  the  executors  of  the  son  filed  a  bill  to 
compel  the  father  to  renew  the  lease  at  his  own  expense.  It  was 
decreed  accordingly(z^;). 

A  bail-bond  may  also  be  assigned  to  a  deceased  plaintiff's  execu- 
tor, and  he  shall  be  equally  entitled  to  recover  upon  it,  as  if  it  had 
been  assigned  to  the  testator  in  his  lifetime(a:). 

If  a  defendant  in  execution  at  the  testator's  suit  escape  after  the 
testator's  death,  the  executor  shall  recover  damages  for  the  escape, 
and  the  damages  so  recovered  shall  be  assets(y).  So  an  executor 
is  entitled  to  replevy  goods  taken  after  the  death  of  the  testator(2'). 
So,  if  A.  die  possessed  of  a  term  for  years  in  an  advowson,  such  term 
shall  vest  in  his  executors;  and  in  case  of  their  being  disturbed,  they 
shall  recover  damages  in  square impedit,  and  such  damages  shall  be 
assets(a). 

If  an  executor  have  an  equitable  title  to  property  in  that  charac- 
ter, and  he  institute  a  suit  for  the  same,  and  it  be  decreed  to  him  in 
a  court  of  equity,  it  shall  also  be  assets(Z»). 

(.s)  3  Bac.  Abr.  59.     Hareconrt  v.  {x)  Forres.  370. 

Wrenham,  Moore,  858.       Ratcliff  v.         (?/)  Com.  Dig.  Admon.B.  13.  Godb. 

Graves,  2  Chan.  Ca.. 152.  Brownl.  76.  262.     Vid.  1  Roll.  Rep.  276. 

(0  Off.  Ex.  82.  (z)  Off.  Ex.  36. 

(w)  Off.  Ex.  82.     11  Vin.  Abr.  231.  («)  Ibid. 

L.  of  Ni.  Pri.  158.  supr.  144.  (Z»)  Com.  Dig.  Assets  C.  Roll.  Abr. 

(f)  Plowd.  286.  920.     Harcourt  v.  Wrenham,  Moore, 

\w)  Husband  v.  Pollard,  Feb.  17,  858. 
18,  19,  cited  2  P  Wms.  467. 


CHAP.  III.]  IN  CHOSES  IN  ACTION.  161 

Where  the  cause  of  action  accrued  before  the  testator's  death, 
[162]  neither  debts  nor  damages  shall  be  assets,  till  they  are  actually 
recovered  by  judgment,  and  levied  by  execution,  or  otherwise  re- 
duced into  possession(c). 

Nor  shall  the  balance  of  an  account  stated  with  the  executor  sub- 
sequently to  the  testator's  death  be  assets,  unless  he  has  recovered  the 
same,  and  has  it  actually  in  his  hands,  for  the  promise  to  the  executor 
on  the  account  stated,  creates  no  new  cause  of  action,  but  ascertains 
merely  the  old  cause  of  action  which  existed  in  the  testator's  life- 
time(rf).  But  such  debts  or  damages  recovered  may  be  assets,  al- 
though never,  in  point  of  fact,  received,  as  if  they  be  released  by  the 
executor.  For  the  release,  in  contemplation  of  law,  shall  amount  to 
a  receipt(e). 

Where  the  cause  of  action  accrues  after  the  testator's  death,  the 
debt  or  damages  shall  be  assets  immediately.  As  where  money  was 
had  and  received  by  the  defendant  to  the  use  of  the  plaintiff  as  ex- 
ecutor, it  was  held,  that  if  the  defendant  received  the  money  by  the 
consent  or  appointment  of  the  plaintitf,  it  was  assets  in  his  hands  im- 
mediately; if  without  his  consent,  yet  the  bringing  of  the  action  was 
such  a  conSent,  as  that  on  judgment  obtained  it  should  be  assets  im- 
mediately without  execution(/). 

[163]  If  a  covenant  atfect  the  realty,  and  the  breach  be  subsequent 
to  the  testator's  death,  the  heir,  and  not  the  executor,  as  is  hereafter 
shown,  shall  be  entitled  to  the  damages. 

If  a  joint  merchant  die,  his  interest  in  the  choses  in  action  belong- 
ing to  the  partnership  devolves  on  his  executor  in  the  same  manner 
as  the  other  joint  property(^^).  It  has  been  even  held  that  the  ex- 
ecutor of  the  deceased  shall  join  with  the  surviving  merchant  in  an 
action  for  goods  carried  away,  or  money  had  and  received  in  the  tes- 
tator's lifetime(/i).  But  it  has  been  doubted  whether  the  executor 
and  surviving  partner  must,  or  can  join  in  such  action(i),  and  it  has 
been  adjudged  to  the  contrary,  and  such  adjudication  seems  now  to  be 
established,  on  the  ground  that  although  the  duty  survive  not,  the 
remedy  does  survive,  and  therefore  must  be  enforced  by  the  latter 
alone(/fc),(l)  who  will  still  be  accountable  to  the  executor  as  above 
stated(/). 

(c)  11  Vin.  Abr.  239,  240.     3  Bac,  (A)  Com.  Dig.  Merchant.  D.  Hall  v. 

Abr.  60.     Jenkins  v.  Plume,  1  Salk.  Hnffam,  2  Lev.    188  and  228.     S.  C. 

207.     Shep.  Touchst,  497.  1  Freem.  468. 

Id)  11  Vin.   Abr.  240.     Jenkins  v.  (!)  Kemp  v.  Andrews,  Show.  189. 

Plume,  1  Salk.  207.  S.  0.  3  Lev.  290,  291. 

(t)  3  Bac.  Abr.  60.     Cooke  v.  Jen-  (A-)  Kemp  v.  Andrews,  Carlh.   170. 

nor,  Hob.  66.     Brightmanv.  Keighley,  Martin  v.  Crump,  Salk.  444.     Vid.  S. 

Cro.  Eliz.  43.  C.   1    Ld.  Raym.   340,  and  Smitli  v. 

(/)  Jenkins  v.  Plume,  1  Salk.  207.  Barrow,  2  Term  Rep,  476. 

Ig)  Harg.  Co.  Lilt.  182.    Com.  Dig.  (/)  Supr.  155. 
Merchant.  D. 

(1)  5   Serf?.   &c  Rawle,  86.      Wallace  v.  FUzdmonn,  1   Dall.  Rep.  248.     JWCarty  v. 
J^ixon,  2  Dall.  Kep.  65 ,  7i.    Peters  v.  Davis,  7  Mass.  Kep.  257. 


164  OF  THE  EXECUTO^^'S  INTEREST  [bOOK  II. 


[164]  Sect.  II. 

Of  interests  vested  in  him  by  condition,  by  remainder  or  increase, 
by  assignment,  by  Hm,itation,  and  by  election. 

An  executor  may  become  entitled  in  such  character  to  chattels  real 
or  personal  by  condition.  As  if  a  lease  for  years,  or  other  chattel, 
has  been  granted  by  the  testator  to  A.,  on  condition  that  if  A,  do  not 
pay  a  certain  sum  of  money,  or  perform  some  other  specific  act 
within  a  limited  time,  the  grant  shall  be  void,  and  the  condition  is 
not  performed,  such  chattel  shall  result  to  the  executor,  and  be  as- 
sets(«).  So,  where  the  condition  is,  that  the  testator,  or  his  execu- 
tors, shall  pay  a  sum  of  money  to  avoid  the  grant,  and  the  executor 
shall  pay  it  accordingly:  As  if  A.  mortgage  a  lease,  or  pledge  a  jewel, 
or  piece  of  plate,  and  before  the  day  limited  for  redemption  or  pay- 
ment die,  his  executor  is  entitled  to  redeem  at  the  day  and  place  ap- 
pointed(6).  If  he  redeem  with  the  testator's  money,  siibh  chattels 
shall  be  assets(c).  If  he  redeem  with  his  own  money,  he  shall  be  in- 
demnified in  respect  to  the  sum  he  has  disbursed  out  of  the  effects 
of  the  testator,  or,  if  necessary,  by  the  [165]  sale  of  the  chattel  itself; 
and  in  that  case  the  surplus  over  and  above  such  indemnity  shall  be 
assets(rf).  In  case  he  have  no  fund  as  executor,  and  he  advance  the 
money  out  of  his  own  purse  for  the  redemption,  and  it  be  fully  equi- 
valent to  the  value  of  the  chattel,  the  property  is  altered  by  such 
payment,  and  shall  be  vested  in  the  executor  as  a  purchaser  in  his 
own  right(e).  But  if  the  executor  disbursed  his  own  money  to  re- 
deem, after  the  time  specified  for  redemption  is  elapsed,  then  it  is 
said  that  the  chattel,  without  any  distinction  in  respect  to  its  value, 
shall  at  law  belong  to  the  executor  in  his  own  right;  since  in  such 
case  it  must  be  deemed  to  be  sold  to  him  by  the  mortgagee  or  pawnee, 
who,  after  the  forfeiture  is  incurred,  has  a  legal  right  to  dispose  of  it 
at  his  pleasure  to  him,  as  to  any  other  person.  But  in  equity,  the 
excess  in  the  value  of  the  thing  beyond  the  money  paid  for  the  re- 
demption shall  be  regarded  as  assets  in  the  hands  of  the  executor(/). 

Chattels  which  were  never  vested  in  the  testator  in  possession,  may 
accrue  to  an  executor  by  remainder,  or  increase.  As,  if  a  lease  be 
granted  to  A.  for  life,  remainder  to  his  executors  for  years,  such  re- 
mainder shall  be  assets  in  the  hands  of  his  executor,  though  it  could 
never  come  into  the  possession  of  tlie  testator.  In  like  manner,  where 
a  lease  for  years  is  given  by  will  to  A.  for  life,  and  [166]  on  his  death 
to  B.,  and  B.  dies  before  A.,  although  the  term  were  never  in  B., 
yet  it  shall  devolve  on  his  executor,  and  be  assets.     So  a  remainder 

(a)  Off.  Ex.  76.  Ex.  79.     2  Fonbl.  404,  n.  f. 
(/y)  Ibid.  7G,  77.  (e)  3  Bac.  Abr.  58.     Kellw.  G3. 

(0  Ibid.  81.  (/)  Off.  Ex.  81. 

{d)  3  Bac.  Abr.  58, 59,  in  note.  Off. 


CHAP.  III.]  BY  CONDITION  OR  REMAINDER.  166 

in  a  term  for  years,  though  it  never  vested  in  the  testator's  possession, 
and  though  it  continue  a  remaiwder,  shall  go  to  the  executor,  and  shall 
be  assets,  for  it  bears  a  present  value,  and  is  capable  of  being  sold(^). 

So  the  young  of  cattle,  or  the  wool  of  sheep,  produced  after  the 
testator's  death,  shall  be  assets(A).  So  if  an  executor  of  a  lessee  for 
years  enter  on  the  lands  demised,  the  profits  over  and  above  the  rent 
shall  be  so  regarded (2). 

A  trade,  generally  speaking,  is  determined  by  the  death  of  the 
trader.  Articles  of  partnership  in  trade  subsist  not  for  the  benefit  of 
executors  of  a  deceased  partner,  unless  they  contain  a  proviso  to  that 
effec\{k):  They  may  contain  such  proviso:(l)  Or  the  testator  may 
by  his  will  direct  his  executors  to  carry  on  his  trade  after  his  death, 
either  with  his  general  assets,  or  appoint  a  specific  fund  to  be  sev- 
ered from  the  general  mass  of  his  property  for  thatpurpose(/).  Ex- 
ecutors may  also  carry  on  their  trade  in  their  re[167]presentative 
character  under  the  direction  of  the  Court  of  Chancery(m).  In  all 
these  instances,  and  a  fortiori  in  case  the  executor  shall  take  upon 
himself  to  carry  on  the  testator's  trade,  the  profits  of  such  trade  shall 
be  assets  for  which  he  shall  be  accountable. 

An  executor  may  also  take  under  the  description  of  an  assignee. 

Assignees  are  such  persons  as  the  party  who  has  a  power  of  as- 
signment actually  assigns  to  receive  the  chattel;  as  if  A.  contract  to 
deliver  a  horse  on  a  given  day  to  B.  or  his  assigns,  then  if  B.  appoint 
J.  S.  to  receive  the  horse,  J.  S.  is  an  assignee  in  deed(?2). 

But  an  executor  is  an  assignee  in  law,  because  by  law  he  is  the 
representative  of  the  testator,  and  is  entitled  to  all  his  goods  and 
chattels,  and  the  benefit  of  all  personal  contracts  entered  into  with 
him;  and  therefore  in  the  case  just  mentioned,  if  B.  die  before  the 
day  limited  for  the  delivery  of  the  horse,  it  ought  to  be  delivered  to 
his  executor;  for  by  law  he  is  the  assignee  of  B.  for  such  a  purpose(o). 

So,  if  a  legacy  is  bequeathed  to  A.  and  his  assigns,  and  A.  die 
before  payment,  it  shall  go  to  his  executor  or  administrator,  as  as- 
[168]  signee(7?).  So,  if  A.  be  bound  to  deliver  a  true  rental  to  J.  S. 
or  his  assignee  at  the  end  of  twenty  years,  and  he  die  before  that 
time  has  elapsed,  A.  is  bound  to  deliver  a  true  rental  to  his  executor, 
for  he  is  assignee  in  point  of  lawf^).  So,  if  A.  be  bound  to  abide  by 
the  award  of  two  arbitrators,  and  they  award  that  he  shall  pay  to  B. 
or  his  assigns  two  hundred  pounds  before  a  day  limited  for  thatpur- 

(^)  Off.  Ex.  83.     Vid.2Fonbl.37I,  (m)  Pearce  v.  Chamberlain,  2  Ves. 

note  (k).  33.     Barker  v.  Parker,  1  Term  Rep. 

(A)  Ofr.  Ex.  83.  295.     Vid.  Off.  Ex.  83,  and  3  Bro.  C. 

(r)  Com.  Dig.  Assets.  C.     Buckley  C.  552. 

V.  Pirk,  1  Salk.  79.     Vid.  Off.  Ex.84,  (n)  Plowd.  288. 

85,  and  supr.  143.  (0)  Ibid. 

(A:)Pearcev.Cliamberlain,2Ves.  33.  \p)  11  Vin.  Abr.  156, 

(/)  Ex-parte  Garland,  10  Ves.  jun.  (7)  H    Vin.   Al)r.    15G.     Fryer   v. 

110.  Gildridge,  Hob.  10. 


(1)  (irali  V.  Bm/ar(l,U  Scrg.  &  llawle,  41. 

15 


1G8  OF  THE  executor's  INTEREST  [bOOKII. 

pose,  and  B.  die  before  the  day,  the  money  shall  be  paid  to  his  ex- 
ecutor as  assignee(r).  Or,  if  A.  covenant  to  grant  a  lease  to  J.  S.  and 
his  assi"-ns  by  Cbristmas,  and  J.  S.  die  before  that  time,  and  before 
the  "-rant  of  the  lease,  it  must  be  made  to  his  executors  as  his  as- 
si2;ns(.9).  So,  if  a  lessor  covenant  to  build  a  new  house  for  the  les- 
see and  his  assigns,  the  executor  of  the  lessee  shall  have  the  benefit 
of  the  covenantas  assignec(/).  But  where  a  bond  was  conditioned 
for  the  obligor's  paying  twenty  pounds  to  such  person  as  the  obli- 
o-ee  should  by  his  will  appoint,  and  he  nominated  J.  S.  his  executor, 
but  made  no  other  appointment,  it  was  resolved,  that  the  executor 
should  not  have  the  twenty  pounds,  for  he  is  only  an  assignee  in 
law,  and  takes  to  the  use  of  the  testator,  but  that  in  that  case  the 
condition  was  in  favour  of  an  actual  assignee,  who  takes  to  his  own 
use(?/). 

[169]  So,  it  has  been  held,  that  if  A.  be  bound  to  pay  ten  pounds 
to  the  assignee  of  B.  the  obligee,  B.'s  executor  shall  not  have  the  ten 
pounds:  But  that  if  A.  be  bound  to  pay  ten  pounds  to  B.  or  his  as- 
signee, then  the  executor  of  B.  shall  be  entitled,  because  it  was  a  right 
vested  in  the  obligee  himself(?^). 

So,  before  the  provisions  of  the  statute  of  frauds  in  regard  to  es- 
tates pi(r  auter  vie{w),  if  a  lease  were  granted  to  A.  and  his  assigns 
during  the  life  of  B.  it  could  go  only  to  A.'s  assignee  in  deed,  and  not 
to  his  cxecutors(.r).  And,  on  his  failure  to  appoint  such  assignee,  it 
was,  in  case  of  his  death,  open  to  be  appropriated  by  the  first  occu- 
pant that  could  enter  upon  it  during  the  life  of  cestui  que  vie. 

But  where  on  a  fine  the  use  of  land  was  limited  to  A.  for  eighty 
years,  with  a  power  to  A.  and  his  assigns  to  make  leases  for  three 
lives,  to  commence  after  the  expiration  of  the  term:  A.  assigned  over 
toB.;  B.  died,  having  made  his  will  and  appointed  C.  his  execu- 
tor: C.  assigned  over  to  D.;  and  D.  in  pursuance  of  the  power,  made 
a  lease  for  life:  The  question  was,  whether  D.  was  such  an  assignee 
of  A.  as  to  have  a  power  to  make  this  lease,  or  whether  it  should  ex- 
tend only  to  the  immediate  assignees  of  A.;  a  point  the  more  doubt- 
ful, as  there  had  been  a  descent  on  an  executor.  On  its  being  ob- 
jected, that  an  executor  should  not  in  some  cases  be  said  to  [170]  be 
a  special  assignee,  the  court  seemed  inclined  to  the  contrary;  and 
that  D.  should  be  considered  as  an'assignee  for  the  purpose  of  mak- 
ing the  leases  in  question,  as  well  as  any  person  that  should  come  to 
the  estate  under  the  first  lessee,  though  there  should  be  twenty 
mesne  assignments;  and  on  a  subsequent  day  judgment  was  given 
accordingly(?/). 

An  executor  may  also  be  entitled  in  respect  of  limitation.  A  con- 
tingent or  executory  interest,  whether  in  real  or  personal  estate,  is 

(A  11  Vin.  Abr.  157.     1  Leon.  316.  (i)  11  Yin.  Abr.  161.     Godb.  192. 

(*)  11  Vin.  Abr.  158.    Off.  Ex.  101.  {w)  Vid.  supr.  140. 

U)  11  Yin.  Abr.  158.     Lat.  261.  {x)  11  Yin.  Abr.  158.    Off.  Ex.  101. 

(u)  11    Yin.   Abr.    156.      Pease  v.  {ij)  Harg.    Co.    Litt.    210,  note  1. 

Mead,   Hob.   9.     Godb.   192.     Harg.  Howe  v.  Whitebank,    1  Freem.  476. 

Co.  Litt.  210,  note  1.  11  Yin.  Abr.  158. 


CHAP.  III.]  BY  CONDITION  AND  REMAINDER.  170 

transmissible  to  the  representative  of  the  devisee  when  such  devisee 
dies  before  the  contingency  happens,  and,  if  not  before  disposed  of, 
v^rill  vest  in  such  representative  when  the  contingency  takes  place. 
Thus  where  the  testator,  in  case  his  wife  should  die  without  issue  by 
him,  after  her  decease,  which  was  taken  to  mean  immediately  after 
her  decease,  gave  eighty  pounds  to  his  brother;  and  after  the  testa- 
tor's death  the  brother  died  in  the  lifetime  of  the  widow,  and  she  af- 
terwards died  without  leaving  any  issue:  It  was  held  that  the  pos- 
sibility devolved  to  the  executors  of  the  brother,  although  he  died 
before  the  contingency  happened,  and  the  legacy  was  decreed  ac- 
cordingly, with  interest  from  the  widow's  death(z).  So  where  B., 
in  consideration  of  natural  love  and  affection  for  her  niece,  and  to  se- 
cure to  her  separate  use  her  personal  estate  to  trus[171]tees  in  trust 
for  herself  during  her  life,  and  after  her  decease,  and  payment  of  her 
debts  and  funeral  expenses,  in  trust  for  the  sole  and  separate  use  of 
her  niece  alone,  and  not  for  her  husband,  or  for  such  persons  as  she 
should  appoint,  and  the  niece  died  in  the  lifetime  of  B.:  it  was  de- 
cided that  the  contingent  interest  belonged  to  the  representative  of 
the  niece(«).  And  in  like  manner,  where  legacies  were  bequeathed 
to  children,  to  be  transferred  to  them  at  their  respective  ages  of 
twenty-one  years,  or  days  of  marriage,  and  that  in  case  any  of  them 
should  die  under  that  age,  or  marry  without  consent,  his  or  her 
share  should  go  to  others  at  their  age  of  twenty-one  years,  Lord 
Hardwicke  C.  decreed  that  a  share  accruing  by  the  forfeiture  of  a 
child's  marrying  without  consent  vested  in  another  child  who  at- 
tained twenty-one,  but  died  before  such  forfeiture,  so  as  to  entitle  the 
personal  representative  of  such  deceased  child  to  an  equal  share 
thereof  with  the  other  surviving  children(6). 

If  a  legacy  out  of  the  personal  estate  is  bequeathed  to  A.,  to  be 
paid  when  he  is  of  the  age  of  twenty-one  years,  and  he  dies  before 
that  time,  his  executors  are  entitled  to  the  legacy:  immediately,  if  it 
be  payable  with  interest;  if  not,  when  A.  would  have  come  of  age(c). 
But  if  such  legacy  be  bequeathed  to  A.  at  his  age  of  twenty-one 
merely,  or  z/he  shall  attain  the  age  of  twenty-one,  [172]  and  he  die 
before  that  period,  his  executors  have  no  title(^).(l) 

This  distinction  with  respect  to  interests  arising  out  of  personal 
property,  as  far  at  least  as  they  are  of  a  legatory  nature,  although  it 
be  explained,  and  in  some  degree  corrected  by  the  more  modern 
cases,  is  in  substance  established  by  a  series  of  authorities(e) ;  but  al- 

(z)  Pinburyv,  Elkin,    1  P.  W-ms.  lei's  case,  366.    Anon.  2  Vern.  199. 

563.     Fearne's  Conting.  Rem.  411.  (of)  Com.  Dig.  Chancer)',  3  Y.  8. 

•  («)  Pecliv.  Parrot,  1  Vcs.  236.  Clobbcrie's  case,  2  Veiitr.  312.     Hut- 

{b)  Chauncy  V.  Graydon,2  Atlc.  616.  chins  v.  Foy,  Com.  Rep.  2d  ed.  719. 

(c)  11    Vin.   Abr.  160.     Brown  v.  (c)  2P.  Wms.  612.     Mr.  Cox's  note 

Farndell.     Carth.     52.      Com.    Dig.  l.Lampenv.  Clowberry,2Ch.Ca.  155. 

Chan.  3  Y.     8  Chan.  R.  112.     Clob-  Smell  v.  Dee,  2  Salk.  415.     1  Eq,  Ca. 

berie's  case,  2  Ventr.  312.     Lord  Paw-  Abr.  295.  Barlow  v.   Grant,  1  Vern. 


(1)  Sec  Patterson  v.  JJawlhot  ii,  1-  Sci'j;.  klviiwk-,  I  I'J. 


172 


OF  THE  executor's  INTEREST 


[book  II. 


though  the  legacy  out  of  the  personal  property  be  left  to  A.  at 
twenty-one,  yet  if  interest  is  given  before  the  time  of  payment,  that 
circumstance  is  held  to  be  evidence  of  an  intention  to  vest  the  le- 
gaey^y").  But  such  presumption  does  not  appear  to  be  formed  from 
tbat  circumstance  in  respect  to  any  interests  but  those  of  a  legatory 
nature,  although  the  fund  be  merely  personal:  for  it  hath  not  been 
admitted  in  cases  of  portions  for  younger  children  to  be  raised  out  of 
such  fund  at  twenty-one,  witli  interest  in  the  mean  time  for  mainte- 
nance and  education (^). 

So  with  respect  to  all  interests  arising  out  of  land,  the  rules  on 
[173]  the  subject  are  totally  different:  for  whether  the  land  be  the 
primary  or  auxiliary  fund,  whether  the  charge  be  made  by  deed  or 
will,  as  a  portion  or  a  general  legacy  for  a  child  or  a  stranger,  with 
or  without  interest,  the  general  rule  is,  that  charges  on  land  payable 
on  a  future  day  shall  not  be  raised  where  .the  party  dies  before  the 
day  of  payment(A).(l)  This  rule  however  is  subject  to  many  ex- 
ceptions; as,  where  the  time  of  payment  is  postponed  from  the  cir- 
cumstances, not  of  the  person  but  of  the  fund.  As,  where  a  term 
was  created  for  daughter's  portions,  commencing  after  the  death  of 
the  father  and  mother,  on  trust  to  raise  the  portions  from  and  after 
the  commencement  of  the  term,  and  the  father  died  leaving  a  daugh- 
ter, the  portion  was  decreed  to  be  vested,  but  not  raisable  during  the 
life  of  the  molher(/). 

Vern.  92.  Yates  v.  Phittiplace,  ib. 
416,  Carter  v.  Bletsoe,  Prec.  Ch.  267. 
Touniay  v.  Tournay,  ib.  290.  Staple- 
ton  V.  Cheales,  ib.  318.  Jennings  v. 
Looks,  2  P.  Wins.  276.  Anon.  Mosel. 
68.  Neeve  v.  Kecke,  9  Mod.  106. 
Gordon  v.  Raynes,  3  P.  Wms.  134. 
Bradley  v.  Powell,  Ca.  Temp.  Talb. 
193.  Prowse  v.  Abingdon,  1  Atk.  482. 
Hall  V.  Terry,  ib.  502.  Van  v.  Clark, 
ib.  512.  Boycot  v.  Cotton,  ib.  555. 
Richardson  v.  Greese,  3  Atk.  69.  At- 
torney-General V.  Milner,  ib.  112.  Old- 
field  V.  Oldfield,  1  Bro.  Ch.  Rep.  106, 
in  note.  124,  in  note.  Ashburne  v. 
M'Guire,  2  Bro.  Ch.  Rep.  108. 

(i)  2  P.  Wms.  612,  note  1.  Lowther 
V.  Condon,  2  Atk.  127.  130.  S.  C. 
Barnard.  327.  Emes  v.  Hancock,  2 
At^.  507.  Butler  v.  Duncomb,  1  P. 
Wms.  457.  Pitfield's  case,  2  P.  Wms. 
513.  Ca.  Temp.  Talb.  117.  King,v. 
Withers,  3  P.  Wms.  414.  Sherman  v. 
Collins,  3  Atk.  319.  Hutchins  v. 
Fitzwater,  Com.  Rep.  716.  Hodgson 
V.  Rawson.  1  Ves.  44.  Dawson  v. 
Killet,  1  Bro.  Ch.  Rep.  119.  124,  in 


255. 
318. 


Atk 
227. 
181 


Stapleton  v.  Cheales,  Prec.  Chan. 
3  Bro.  P.  C.  337.  2  Eq.  Ca. 
Abr.  548.  Lowther  v.  Condon,  Bar- 
nard. 329.  Steadman  v.  Palling,  3 
427.  Goss  V.  Nelson,  1  Burr. 
Barnes  v.  Allen,  1  Bro.  Ch.  Rep. 
Monkhouse  v.  Holme,  ib.  298. 
Benyon  v.  Maddison,  2  Bro.  Ch.  Rep. 
75.  May  v.  Wood,  3  Bro.  Ch.  Rep. 
471. 

(/)  2  P.  Wms.  612,  note  1.  Collins 
V.  Metcalfe,  1  Vern.  462.  Stapleton 
V.  Cheele,  2  Vern.  673.  S.  C.  Prec. 
Ch.  318.  Atkins  v.  Hiccocks,  1  Atk. 
501.  Van  v.  Clark,  1  Atk.  512.  Neale 
V.  Willis,  Barnard.  43.  Foncrean  v. 
Foncrean,  3  Atk.  645.  S.  C.  1  Ves. 
1 18.  Walcot  V.  Hall,  2  Bro.  Ch.  Rep. 
305. 

(g-)  2  P.  Wms.  612,  note  1.  Targus 
V.  Puget,  2  Ves.  207.  Hubert  v.  Par- 
sons, ib.  262.  Goss  v.  Nelson,  1 
Burr.  227. 

(A)  Pitfield's  case,  2  P.  Wms.  515. 
612,  note  1.  Lampen  v.  Clowberry,2 
Ch.  Ca.  155.  Poulet  v.  Poulet,  1 
Vern,   204.  321.     Smith  v.  Smith,  2 


(1)  I'i  Serg.  k  KawJe,  114. 


CHAP.  III.]  BY  LIMITATION  AND  ELECTION.  173 

And  where  a  legacy  was  charged  upon  real  estate,  to  vest  imme- 
diately on  the  testator's  death,  but  to  be  paid  to  the  legatee  on 
attaining  21,  and  the  interest  to  be  applied  in  the  mean  time  for 
maintenance,  and  the  legatee  died  before  attaining  21:  it  was  held, 
that  the  express  direction  that  the  legacy  should  vest  on  the  death 
of  the  testator,  prevented  its  sinking  for  the  benefit  of  the  devisee, 
and  that  the  personal  representative  of  the  legatee  was  entitled  to  the 
legacy  (y). 

In  respect  to  those  cases  where  portions  have  been  given  out  of 
land,  and  no  time  of  payment  expressed,  it  seems  difficult  to  re- 
concile the  determinations.  According  to  one  class,  their  interest 
is  vested  immediately,  and  transmissible:  according  to  another, 
[174]  such  portions  shall  not  vest,  'if  the  children  die  before  they 
want  them(A'). 

But  if  lands  be  devised  for  payment  of  portions,  and  one  of  the 
children  entitled  to  a  portion  die  after  it  becomes  due,  though  before 
the  lands  are  sold,  the  personal  representative  of  such  child  will 
clearly  be  entitled  to  the  money(/). 

In  those  cases,  in  which  both  the  real  and  personal  estates  are 
charged  with  a  legacy,  as  far  as  the  executor  claims  out  of  the  latter 
he  shall  succeed  according  to  the  rule  of  the  spiritual  court  where  such 
claim  is  determinable,  though  the  infant  legatee  die  before  the  time 
of  payment,  and  consequently  the  legacy,  so  far  as  it  is  charged  upon 
the  land,  shall  sink(?7i).(l) 

An  executor  may  also  claim  by  election;  as  where  the  testator  at 
the  time  of  his  death  was  entitled  out  of  several  chattels  to  take  his 
choice  of  one  or  more  to  his  own  use.  If  nothing  passes  to  the 
grantee  of  a  chattel  before  his  election,  it  ought  to  be  made  in  his 
lifetime(n).  As,  if  A.  give  to  B.  such  of  his  horses  as  B.  and  C. 
shall  choose,  the  election  ought  to  be  made  in  the  lifetime  of  B.(o). 

note.     Tunstal  v.  Bracken,  Arab.  167.  Ch.  Rep.  124,  in  note.    Lord  Hinchin- 

Embrey  v.  Martin,  ib.  230.     Smith  v.  broke  v.  Seymour,  ib.  395,  and  vid.  2 

Partridge,  ib.  266.    Mannerina  v.  Her-  Atk.   133,  and  11  Vin.  Abr.  163,  164. 

bert,  ib.   575.     Fawsey  v.   Edgar,  1  Whitmore  v.  Wild,  1  Vern.  326.  347. 

Bro.  Ch.  Rep.  in  note.     Thomson  v.  Gifford  v.  Goldsey,  2  Vern.  35.     Earl 

Dowe,  ib.  193,  in  note.  Rivers  v.  Earl  Derby,  ib.  72, 

(jf)  Watkins  v.  Cheek,  2  Sim.  and         (/)  11  Vin.  Abr.  163.     Bartholomew 

Stu.  199.  V.  Meredith,  1  Vern.  276. 

(A:)  Cowper  v.  Scott,  3  P.  Wms.  1 19.  (m)  Duke  of  Chandos  v.  Talbot,  2 

Wilson  V.  Spencer,  ib.  172.   2  P.  Wms.  P.  Wms.  613. 

612,  note  1.    Brewin  v.  Brewin,  Prec.  (?»)  Com.  Dig.  Election  B.  Harg. 

Ch.  195.    Warr  v.  Warr,  ib.  213.     Ld.  Co.  Litt.  145. 
Teynham  v.  Webb,  2  Ves.  209.  1  Bro.  (o)  1  Roll.  Abr.  726. 

(1)  See  12  Serg.  h  Rawle,  114.  But  where  a  testator  directed  that  all  the  rest  and 
residue  of  his  estate,  "of  what  kind  or  nature  soever,  whether  in  possession,  remainder 
or  reversion,"  should  be  sold  by  his  executors  "at  any  time,  and  in  any  manner  he  or 
they  shall  think  proper,"  and  tlie  moneys  arising  from  such  sales  to  be  paid  to  particular 
persons  (his  sons),  the  interest  of  the  legatees  was  held  to  be  a  vested  one,  which  their 
deaths  before  the  sale  did  not  defeat.     Tazewell  v.  Smith''s  adm.,  I  Rand.  Rep.  313. 


174         OF  THE  executor's  INTEREST,  &C.      [bOOK  II. 

But  where  an  interest  vests  immediately  by  the  grant,  the  election 
may  be  made  by  the  executor,  as  well  as  by  the  party  himself(7;). 
As,  if  a  fine  be  levied  of  a  hundred  acres,  and  the  conusee  grant 
fifty  to  the  conusor  for  a  term  of  years,  his  executor  may  choose 
which  fifty  he  will  have.  So  if  A.  gives  one  of  his  horses  to  B.  and 
C,  13.  may  elect,  after  the  death  of  C,  which  he  will  take,  for  an 
[175]  interest  vested  in  them  immediately  by  the  gift(y).  So  if 
the  election  determine  only  the  manner  or  degree  in  which  tlie  thing 
shall  be  taken,  the  executor,  as  well  as  the  grantee  himself,  may 
make  it;  for  in  such  case  also  there  is  an  immediate  interest(r).  As, 
if  a  lease  be  granted  to  A,  for  ten  or  twenty  years,  as  he  shall  elect, 
the  executor  is  entitled  to  the  election. 

(p)  Harg.  Co.  Litt.  145.  (r)  Harg.  Co.  Litt.  144  b. 

Ij)  I  Roll.  Abr.  725. 


CHAP.  IV.]  OF  CHATTELS  REAL,  &C.  176 


CHAPTER  IV. 


OP  CHATTEL  INTERESTS  WHICH  DO  NOT  VEST  IN    THE    EXECUTOR  OR 
ADMINISTRATOR. 


Sect.  I 

Of  chattels  real  which  go  to  the  heir;  and  also  toitching  money 
considered  as  land,  and  land  as  money. 

1  PROCEED  now  to  inquire  under  what  special  circumstances  chat- 
tel interests  shall  go  to  the  heir  of  the  last  proprietor. 

The  principle  which  generally  pervades  the  cases  in  which  the 
heir,  as  distinguished  from  the  executor,  shall  be  entitled  to  chattels, 
is  this — that  they  are  so  annexed  to  and  consolidated  with  the  in- 
heritance, that  they  shall  accompany  it  wherever  it  vests(a). 

And,  first,  in  regard  to  chattels  real:  if  A.  seised  in  fee  grant  an 
estate  tail,  or  a  lease  for  life  or  years,  reserving  rent,  such  rent  as 
accrues  after  his  death,  being  incident  to  the  reversion,  shall  go  to 
his  heir,  and  not  to  his  executors(6),  although  they  are  expressly 
named  in  the  covenant(c).  If  A.  seised  in  fee  make  a  lease,  re- 
[177]  serving  rent  to  him,  his  executors  and  assigns,  and  die,  the 
rent  is  determined,  for  the  executors  are  not  entitled  to  it,  inasmuch 
as  they  are  strangers  to  the  reversion,  which  is  an  inheritance,  nor 
shall  it  go  to  the  heir,  because  he  is  not  named(^).  But  if  A. 
seised  in  fee  make  a  lease  for  years,  reserving  rent  to  him  and  his 
assigns,  or  to  him,  his  executor  and  assigns,  during  the  term,  al- 
though there  be  decisions  to  the  contrary  (e),  the  words,  "  during  the 
term,"  shall  be  sufficient  to  carry  the  rent  to  the  heir.  Where  the 
rent  is  so  reserved,  the  intention  of  the  parties  is  clearly  expressed, 
that  the  lessee  is  to  pay  the  same  during  the  continuance  of  the  de- 
mise(/). 

In  case  the  lease  reserve  rent  at  Michaelmas,  or  ten  days  after;  if 
the  rent  be  not  paid  at  Michaelmas,  and,  before  the  ten  days  are  ex- 
pired, the  lessor  dies,  his  heir,  and  not  his  executor,  shall  receive 

(a)  2  Bl.  Com.  427,  428.  (e)  See  Noy,  9G.    12  Co.  36.    Rich- 

(i)  3  Bac.  Abr.  62.    Harg.  Co.  Litt.  motid  v.  Butcher,  Cro.  EHz.  217.    3 

47.  Bac.  Abr.  63,  in  note. 

(c)    Harff.  Co.  Litt.  47,  in  note  9.  (/)  Harg-.  Co.  Litt.  47,  note  8.  ibid. 

Drake  v.  Munday,  Cro.  Car.  207.  202.     3  Bac.  Abr.  62.     Sachevercl  v. 

(rf)   Harg.   Co.   LiU.  47.      2  RoU.  Frogate,  2  Saund.  367.     S.  C.  1  Vent. 

Abr.   450.     Sacheverel  v.  Frogate,  1  148.    161.       Sacheverel    v.    Frogate, 

Ventr.  161.  Rayra.  213.     2  Lev.  13.  K.  C. 


177  OP  CHATTELS  REAL  [bOOK  II. 

the  rent:  for  although  it  were  in  the  election  of  the  lessee  to  pay  it 
at  Michaelmas,  yet  the  ten  days  after  are  the  true  legal  term,  and 
consequently  the  rent  was  not  legally  due  before  that  period  of  time, 
and  therefore  is  no  chattel(^).  So  if  the  lessor  die  on  the  day  on 
which  the  rent  is  payable,  after  sunset,  and  before  midnight,  the 
heir,  and  not  the  executor,  may  demand  the  rent,  for  it  is  not  in 
strictness  due  till  the  last  minute  of  the  natural  day,  although  it 
[178]  may  be  more  convenient  to  pay  it  before(/i).  So  where  rent 
is  granted  to  A.  and  his  heirs  for  life,  and  tiie  lives  of  B.  and  C,  the 
heir  shall  have  the  rent  as  a  party  specially  nominated,  and  as  heir 
by  descent(/).  So,  although,  for  the  arrears  of  a  nomine  pcenx,  or 
penalty  from  non-payment  of  rent,  the  grantee  himself,  and  there- 
fore his  executors,  may  have  an  action  of  debt,  yet  such  penalty, 
as  an  incident  to  the  rent,  shall  descend  to  the  heir(A;).  So  a  term 
for  years  in  trust  to  pay  debts,  afterwards  to  attend  the  inheritance, 
shall  go  to  the  heir,  and  not  to  the  executor(/).  So  if  a  term  be 
raised  for  a  certain  purpose,  and  that  purpose  be  answered,  the  heir 
shall  have  the  beneficial  interest  in  the  same,  whether  it  be  so  ex- 
pressed or  not(w2);  but  he  shall  take  it  as  a  term,  and  consequently 
as  a  chattel(n).  So  an  annuity,  although  a  chattel  interest,  is  de- 
scendible to  the  heir(o).  So  where  A.,  the  cestui  que  trust  of  a 
term  in  Blackacre,  afterwards  purchased  the  fee  in  his  own  name, 
and  devised  Blackacre  in  fee  to  B.,  his  heir,  whom  he  made  his 
executor  and  residuary  legatee,  it  was  held  tiiat  on  the  death  of  B. 
the  term  should  go  with  the  fee  to  B.'s  heir,  and  not  to  his  per- 
[179]  sonal  representative(/?).  So  if  an  estate  pur  auter  vie  be 
limited  to  A.,  his  heirs,  executors,  administrators,  and  assigns,  and  be 
not  devised,  it  shall  descend  to  the  heir  as  a  special  occupant(y). 

But  if  a  debt  be  owing  to  A.,  and,  in  satisfaction  of  it,  the  deI)tor 
grants  him  an  annuity,  charged  on  lands  for  the  grantor's  own  life, 
and  redeemable,  such  annuity  shall  be  part  of  A.'s  personal  estate(r). 
So  a  term  conveyed  as  a  fee  by  lease  and  release  to  J.  S.  and  his 
heirs  by  the  word  "grant,"  although  it  cannot  operate  as  a  fee  to 
vest  in  the  heirs  of  J.  S,,  yet  shall  go  to  his  personal  representative(.s). 

(^)  3  Bac.  Abr.  63.     10  Co.  127.  («)  11  Vin.  Abr.  171.  Levet  v.  Need- 

(//)  3  Bac.  Abr.  63.    Harg.  Co.  Litt.  ham,  2  Vern.  139. 

202,  note  1.    Duppa  v.  Mayo,  1  Saund.  (o)  11  Vin.  Abr.  153.   Arg.  10.  Mod. 

287.      Ld.   Rockiiigbam  v.  Oxenden,  237.     Vide  also  11  Vin.  Abr.  146.pl. 

Salk.  578,  and  vid.  1   P.  Wms.   177.  25.    Co.  Litt.  374  b.    Earl  Stafford  v. 

S.  C.  Buckley,   2  Ves.    170.     Countess   of 

(t)   11  Vin.  Abr.    168.     Bowles  v.  Holderness  v.  Marq.  of  Carmarthen,  I 

Poore,  Cro.  Jac.  282.    Vid.  2  Bl.  Com.  Bro.  C.  Rep.  377.     2  Bl.  Com.  40. 

259.  (;j)  Goodright  v.  Sales,  2  Wils.  329. 

(/.-)  11  Vin.  Abr.  168.     Harg.  Co.  vid.  supr.  7. 

Litt.  162  b.  (ly)  Atkinson,  Admx.   v.   Baker,  4 

(/)  11  Vin,  Abr.  172.     Countess  of  Term  Rep.  229.     Vid.  supr.  140. 

Bristol  V.   Ilungerford,  2   Vern.  645.  (r)  Com.  Dig.  Biens.  C.  Longuet  v. 

Com.  Dig.  Biens.  B.  2  Ca.  Ch.  Scawen,  1  Ves.  402. 

V.  Langton,  156.  160.  (.?)  11  Vin,  Abr.  153.     Marshall  v. 

(m)   11    Vin.    Abr.    169.     Anon.   2  Frank,  Chan,  Prec.  480. 
Vent.  359. 


CHAP.  IV.]  WHICH  GO  TO  THE  HEIR.  179 

So  if  a  lessee  for  twenty  years  make  a  lease  for  ten  years,  reserving 
a  rent  during  the  last-mentioned  term  to  him  and  his  heirs,  it  shall 
be  void  as  to  his  heir,  and  shall  belong  to  his  executor(/).  So  if  A. 
possessed  of  a  term  for  years  devise  it  to  B.  for  life,  remainder  to 
the  heirs  of  B.,  it  seems  that  on  B.'s  death  it  shall  go  to  his  execu- 
tor, and  not  to  his  heir(«).  So  if  A.  seised  in  fee  make  a  lease  for 
years,  reserving  rent,  and  devise  the  rent  to  B.;  B.'s  executor,  and 
not  his  heir,  shall  be  entitled  to  the  rent,  because  B.  had  no  more 
[180]  than  a  chattel  interest(t>).  So  where  a  copyhold  estate  was 
granted  to  A.  for  the  lives  of  A.  B.  and  C,  and  A.  died  intestate,  it 
was  held  that  his  administrator  should  have  the  estate  during  the 
lives  of  B.  and  C.(w). 

So  a  lease  granted  by  a  copyholder  for  one  year  only  shall  be  no 
forfeiture,  for  it  is  warranted  by  the  general  custom  of  the  realm, 
and  shall  be  accounted  assets  in  the  -hands  of  the  executor  of  the  les- 
see(,r). 

If  A.  grant  a  rent  in  fee  to  J.  S.,  with  a  proviso  that,  if  it  be  in  ar- 
rear,  the  grantee  may  enter  the  lands,  and  retain  till  he  be  satisfied; 
the  power  of  entry  is  an  inheritance,  and  descends  to  the  heir:  but 
when  entry  is  made,  the  party  has  merely  a  chattel  interest  in  the 
lands,  which,  with  the  arrears,  shall  go  to  his  executor(y). 

If  the  grantee  of  a  rent  in  fee  take  a  lease  for  years  of  the  lands 
out  of  which  the  rent  issues,  and  die,  his  executor  shall  have  the 
land,  and  the  heir  is  precluded  from  the  rent(2). 

So,  a  bond  given  by  one  parcener  to  pay  the  other,  her  execu- 
tors or  administrators,  an  annual  sum  during  the  life  of  J.  S.  for 
[181]  owelty  of  partition,  or  as  a  compensation  for  her  share  being 
of  the  less  value,  shall  go  to  the  executor,  and  not  to  the  heir:  be- 
cause in  such  case  there  is  no  grant  of  a  relit,  but  a  mere  contract, 
and  therefore  the  obligor  had  an  election,  either  to  pay  the  same,  or 
to  forfeit  her  bond(a). 

Money  covenanted  to  be  laid  out  in  land,  we  have  seen(6)  shall 
descend  to  the  heir.  Nor  is  the  case  varied  by  the  covenants  being 
voluntary;  as,  if  A.  without  any  consideration  covenant  to  lay  out 
money  in  a  purchase  of  land  to  be  settled  ©n  him  and  his  heirs,  a 
court  of  equity  will  compel  the  execution  of  such  contract,  though 
merely  voluntary;  for  in  all  cases  where  it  is  a  measuring  cast  be- 
tween an  executor  and  an  heir,  the  latter  shall  in  equity  have  the 
prefererice^c).     But  in  such  cases,  if  there  be  proof  that  the  party  ab- 

(0  Sacheverel  v.  Frogate,  1  Vent.  W.  Jo.  249.  Litt.  Rep.  233. 

161,  (y)  11  Vin.  Abr.  147.     Jemmot  v. 

(u)   11  Vin.  Abr.   155.      Davis  v.  Cooly,    1    Lev.    171.     Errincrton   v. 

Gibbs,  3  P.  Wms.  29.  Hirst,  Raym.  125.  158.     1  Sid.  223. 

{v)   11   Vin.  Abr.  145.     Dyer  5  b.  262.  344.     ; 

note  1.  ibid.     Ards  v.  Watkins,  Cro.  (2)  U  Vin.  Abr.  147.   Lit.  Rep.  59. 

Eliz.  637.  651.     Moore,  549.  S.  C.  (a)   11  Vin.  Abr.   150.     Hulbert  v. 

(w)  U  Vin.  Abr.  151,  in  note.    Howe  Hart,  1  Vern.  133. 

V.  Howe,  1  Vern.  415.  (/>)  Supr.  8. 

(x)   II   Vin.  Abr.  146.     Poph.  188.  (c)  Edwards  v.  Countess  of  War- 

Harg.  Co.  Litt.  59,  note  4.     4  Co.  26.  wick,  2  P.  Wms.  176. 
9  Co.  75  b.      Matthewes  v.  Weston, 
16 


181  OF  CHATTELS  REAL  [bOOK  II. 

solutcly,  and  in  all  events  entitled  to  the  money,  intended  to  give  it 
the  quality  of  a  personal  estate,  then  it  shall  go  to  his  executor. 
Whether  the  mere  circumstance  of  the  fund  remaining  in  his  hands 
in  the  shape  of  money  shall  of  itself  he  evidence  of  such  intention, 
and  if  not,  whether  the  heir  has  any  equity  against  the  j)ersonal  repre- 
sentative in  this  respect,  are  points  in  which  the  cases  seem  in  some 
measure  to  differ.  But  they  all  agree  that  even  slender  proof  of  the 
intention  will  decide  the  question(f/). 

Tluis,  hy  articles  hefore  marriage,  securities  for  moneys  amount- 
ing to  the  sum  of  £1400  were  assigned  to  trustees,  and  agreed  to 
be  invested  in  land  to  he  settled  on  the  husband  for  life,  remainder 
to  the  wife  for  life,  remainder  to  the  issue  of  the  marriage,  remain- 
der to  the  right  heirs  of  the  husband,  some  of  the  securities  were 
continued  unaltered,  but  part  of  the  money  settled  was  invested  on 
other  securities  expressly  in  tnist  for  the  husband,  his  executors 
and  administrators.  The  husband  died  without  issue,  having  made 
his  will,  by  which  he  devised  som.eof  his  lands  to  his  wife,  and  the 
rest  of  his  real  estate  in  Yorkshire  and  elsewhere  to  J.  S.,  and  all  his 
personal  estate  and  all  his  securities  for  money  to  his  wife,  whom  he 
appointed  executrix.  It  was  held  that  so  much  of  the  £1400  as  was 
subsisting  upon  the  securities  on  which  it  was  originally  placed,  or 
on  any  other  securities  where  no  new  trust  had  been  declared,  ought 
to  be  considered  as  real  estate;  but  that  such  part  as  was  called  in  by 
the  testator,  and  afterwards  placed  out  upon  securities  upon  a  differ- 
ent trust,  should  be  taken  to  be  personal  estate;  upon  the  princii)le, 
that  as  there  was  no  issue  of  the  marriage,  it  was  in  the  power  of  the 
husband  to  alter  and  dispose  of  the  settled  property  as  against  the 
heir  at  law,  though  not  against  the  wife,  and  yet  the  placing  it  out 
upon  different  trusts  was  an  alteration  of  the  nature  of  it,  and  his  de- 
claring the  trust  to  his  executors  seemed  equivalent  to  his  declaring 
that  it  should  not  go  to  his  heir(e). 

But  where  A.  executed  articles  of  agreement  for  the  purchase  of  land 
of  B.  and  paid  B.  six  hundred  pounds;  but  B.  paid  A.  Interest  for  the 
money,  and  A.  paid  B.  rent  for  the  premises,  it  was  held,  that  on  A.'s 
dying  before  the  conveyance,  his  executor  was  entitled  to  the  six 
[182]  hundred  pounds,  as  part  of  his  personal  estate(/).  On  the 
other  hand,  where  A.  died  intestate,  leaving  two  daughters,  and  after 
his  decease  the  widow  laid  out  the  sum  of  four  hundred  pounds,  part 
of  his  assets,  in  land,  and  settled  it  to  herself  for  life,  remainder  to 
her  two  daughters  in  tail,  remainder  to  her  own  right  heirs:  the  ad- 
ministrators of  the  daughters  claimed  from  the  heir  at  law  of  the 
widow  two-thirds  as  personal  estate,  and  it  was  proved  that  the  same 
four  hundred  pounds  were  applied  in  the  purchase:   although  the 

{d)  Edwards  v.  Countess  of  War-  C.  269.     Bradish  v.  Gee,  Ambl.  229. 

wick,   2  P.  Wms.   175,   and  note  1.  Hewitt  v.  Wright,  1  Bro.  Ch.  Rep.  86. 

Chichester  v.  Bickerstaff,  2  Vera.  295.  Pulkney  v.  Earl  Darlington,  223. 

Lingen  v.  Sowray,   1  P.  Wms.  172.  (e)  Lingen  v.  Sowray,  1  P.  Wms. 

Lechmerc  v.  Earl'  of  Carlisle,  3   P.  172.- 

Wms.  2I1.S.  C.  Ca.  Tcmp.Talb.80.  (/)  11    Vin.  Abr.   149.     2  Chan. 

Guidot  V.   Guidot,    3    Atk.   254.   ib.  Rep.  138. 

Crabtree  v.  Bramble,  680.     5  Bro.  P  ' 


CHAP.  IV.]  WHICH  GO  TO  THE  HEIR.  182 

Master  of  the  Rolls  decreed  for  the  administrators,  yet  on  appeal 
the  Lord  Keeper  reversed  the  decree,  on  the  ground,  that  money 
could  not  be  specifically  distinguished,  nor  followed  when  invested  in 
a  purchase(^).  But  where  an  executor  in  trust  for  an  infant  of  i. 
lease  for  ninety-nine  years  determinable  on  three  lives,  on  the  lord's 
refusal  to  renew  but  for  lives  absolutely,  complied  with  his  requisi- 
tion, and  changed  the  years  into  lives;  on  the  infant's  dying  under 
twenty-one,  this  was  held  to  be  a  trust  for  his  administi'ator,  and  not 
for  his  heir(/i).  So  where  trustees  purchased  lands  in  fee-simple 
with  the  infant's  money,  and  the  infant  died  in  his  minority,  it  was 
held  that  the  land  should  be  accounted  part  of  the  pers-^nal  estate, 
and  should  go  to  his  administrator(/).  So,  where  committees  of  a 
[183]  lunatic  invested  part  of  his  personal  estate  in  the  purchase  of 
lands  in  fee,  the  court  declared  it  should  be  deemed  personal  pro- 
perty, decreed  an  account,  the  land  to  be  sold,  and  the  money  to  be 
divided  among  the  next  of  kin.  For  it  shall  not  be  in  the  power  of 
a  guardian  or  trustee  to  change  the  nature  of  the  estate(l).  But  it 
appears,  that  if  in  such  case  the  trustees  obtain  a  decree  in  equity  for 
the  purchase,  the  court  will  maintain  its  decree,  and  then  the  estate 
shall  go  to  the  heir,  and  not  return  to  the  personal  fund,  if  there  be 
no  ground  to  impeach  the  trustees  of  fraud(/^). 

With  respect  to  mortgages,  since  courts  of  equity  consider  such 
contracts  as  merely  personal,  the  mortgage-money  is  in  general  held 
to  be  part  of  the  personal  estate,  and  to  belong  to  the  executor  of  the 
mortgagee.  But,  under  special  circumstances,  it  shall  be  regarded  in 
the  light  of  real  property,  and  shall  go  to  the  heir(/). 

At  law,  if  the  condition  or  defeasance  of  a  mortgage  of  inheritance 
make  no  mention  either  of  heirs  or  executors,  to  wl^om  the  money 
shall  be  paid,  the  money  ought  to  go  to  the  executors,  for,  being 
originally  derived  out  of  the  personal  estate,  in  natural  justice,  it 
ought  to  return  thither.  If  the  defeasance  appoint  the  money,  to  be 
paid  either  to.  the  heir  or  executors,  and  the  mortgagor  pay  the 
[184]  money  at  or  before  the  day,  he  may  elect  to  pay  it  either  to 
the  heir  or  the  executor.  If  the  day  of  payment  be  past,  and  the 
mortgage  be  forfeited,  all  election  is  gone;  for  at  law  there  exists  no 
right  of  redemption.     There  can  be  a  redemption  only  in  equity,  and 

(g)  11  Vin.  Abr.  153.     Kendar  v.  (/.:)  11    Vin.   Abr.   51.     Awdley  v. 

Milward,  2  Vern.  440.  Awdley,  2  Vern.  192.     Thomas  v.  Ke- 

(h)    11   Vin.  Abr.    155.     WiUer  v.  niisli,  2  Freem.  209.    Earl  of  Winchel- 

Witter,  3  P.  Wms.  99.  sea  v.  Norcliffe,  1  Vern.  435. 

(i)  11  Vin.  Abr.  151.    2  Chan.  Rep.  (/)  Powell  on  Mortgages,  2d  vol. 

377.  682—698. 


(1 )  If  the  guardian  of  a  minor  child  of  an  intestate  accept  for  liis  ward  a  purpart  of  the 
real  estate  of  tlie  iiilesUitc,  adjudged  to  the  minor  by  tlie  Orphans'  Court  under  proceed- 
ings in /)am7?</?t,  had  pursuant  to  tlic  provisions  of  Uie  act  of  I'JtIi  April,  17'J4,  sect.  22 
(Purd.  Dig.  378),  and  enter  into  recognizances  for  the  payment  of  tlic  shares  of  the  other 
chiklren,lhe  ward  is  Ijoimd  by  the  act  of  the  guardian,  and  cannot,  on  airiving  atfuU  age, 
disaffirm  it.     Case  of  Gdlmch's  .Ippeaf,  S  Scrg.  k  llawlc,  205. 


184  OP  CHATTELS  REAL  [bOOK.  II. 

equity  will  not  revive  the  election;  but  considers  the  case  the  same 
as  it"  neither  heir  nor  executor  had  been  named.  And  as  in  that  case 
the  law  will  give  it  to  the  executor,  equity,  which  ought  to  follow 
the  law,  will  decree  it  to  the  same  person.  Hence,  therefore,  when 
the  security  descends  to  the  heir  of  the  mortgagee  attended  with  an 
equity  of  redemption,  as  soon  as  the  mortgagor  pays  the  money,  the 
land  shall  belong  to  him,  and  the  money  only  to  the  mortgagee, 
"which  is  merely  personal,  and  so  accrues,  and  is  payable  to  his  ex- 
ecutor(?w).  Nor  will  it  appear  inequitable  that  the  heir  should  be 
decreed  to  make  a  reconveyance  without  having  the  money  which 
comes  in  lieu  of  the  land,  if  it  be  considered  that  the  land  was  no 
more  than  a  security,  and  that,  after  payment  of  the  money,  a  trust 
results  for  the  mortgagor,  which  the  heir  of  the  mortgagee  is  bound 
to  execute. 

Nor  is  it  material  that  the  executor  of  the  morgagee  has  assets 
without  such  money.  Assets  shall  not  be  the  measure  of  justice 
between  the  parties.  The  heir  either  ought  to  have  the  money  if 
there  were  no  assets,  or  ought  not  to  have  it  although  there  were. 
Nor  is  the  principle  varied  by  there  being  no  personal  covenant  on 
[185]  the  part  of  the  mortgagor  to  pay  the  money:  for  although  the 
claim  of  the  mortgagee's  executor  would  be  strengthened  by  such  a 
covenant,  yet  it  shall  avail  him  without  it(?i).  And  although  a 
mortgage  in  fee  be  conditioned  that  the  mortgagor  shall  pay  the 
money  to  the  mortgagee,  his  heirs,  executors,  administrators,  or  as- 
signs, and  tlie  mortgagee  died  before  the  forfeiture  of  the  mortgage, 
whereby  the  mortgagor  has  his  election  at  law  to  pay  the  money 
to  either,  yet  in  equity  it  shall  belong  to  the  executor;  for,  in  mort- 
gages in  fee,  the  mortgagee's  heirs  are  trustees  for  his  personal  re- 
presentatives(o).  In  short,  mortgages  are  deemed  in  equity  to  be 
mere  chattel  interests,  and  to  belong  to  the  executor  of  the  mort- 
gagee, unless  his  intention  to  the  contrary  be  declared  in  express 
terms  by  the  contract(7j),  or  by  his  will,  or  be  evidently  implied  by 
his  conduct:  As,  if  he  foreclose,  or  procure  a  release  of  the  equity  of 
redemption,  and  obtain  actual  possession  of  the  premises.  So,  where 
a  mortgage  in  fee  descended  on  the  heir  at  law  of  the  mortgagee, 
and  the  personal  representative  of  the  mortgagee,  ten  years  after  the 
money  had  been  paid  to  such  heir,  filed  a  bill  for  the  same,  it  was 
decreed  to  him,  but  without  interest(y). 

Nor  shall  a  legacy  to  the  executor,  although  expressed  to  be  pay- 
able after  debts,  and  the  other  legacies,  effect  his  title  to  money 
[186]  due  to  the  testator  on  mortgage.  Thus  where  a  mortgage  in 
fee,  after  bequeathing  several  legacies,  gave  one  hundred  pounds  to 
his  executor,  with  a  direction  that  his  legacy  should  not  be  paid  till  the 

(m)  Waring  v.  Danvers,  1  P.  Wms.  Ventr.  351.    Barnard.  50.  Rightson  v. 

295.     See  also  Fonbl.  255.  Overton,  2  Freem.  20.  Harg.  Co.  Litt. 

(n)  11  Vin.  Abr.  148,  and  in  note.  208  b.  note  1. 

Baker  v.  Baker,  2  Freem.  143.     See  (p)  Off.  Ex.  Suppl.  47.   Harg.  Co. 

also  2  P.  Wms.  455.  Litt.  210. 

(o)   Sir  Thomas  Littleton's  case,  2  (y)  Turner's  case,  2  Ventr.  348.  • 


CHAP.  IV.]  WHICH  GO  TO  THE  HEIR.  186 

testator's  debts  and  other  legacies  were  discharged,  and  there  was 
no  deficiency  of  assets,  yet  the  court  decreed  in  favour  of  the  execu- 
tor against  the  heir(/).     So,   if  the  mortgagor  shall  fail  to  redeem, 
the  heir  of  the  mortgage  shall  convey  the  land  to  the  executor:  As 
where  the  mortgage  was  forfeited,  though  the  heir  of  the  mortgagee 
were  in  possession  by  descent,  and  there  were  no  deficiency  of  as- 
sets, on  the  mortgagor's  not  offering  to  redeem,  the  heir  of  the 
mortgagee  was  decreed  to  make  such  conveyance:  for  since  the  mo- 
ney, as  part  of  the  personal  estate,  would  have  gone  to  the  executor, 
he  was  held  entitled  to  the  land  as  a  recompence(*).     So,  where  a 
copyhold  was  mortgaged  by  surrender  to  A.  who  was  admitted  ten- 
ant, and  died,  leaving  B.  his  son,  and  heir,  and  executor:  B.  entered, 
and  was  also  admitted,  and  afterwards  by  his  will,  but  without  any 
surrender  to  the  use  of  the  same,  devised  it  to  C:  on  B.'s  death  C. 
became  the  personal  representative  of  A.,  and  exhibited  his  bill  against 
D.,  who  was  heir  at  law   of  A.  and  B.,  and  who   claimed  this  as 
a  real  estate  on  a  variety  of  grounds:  that  the  forfeiture  had  been 
so  long  incurred;  that  two  descents  had  been  cast;  that  more  was 
due  on  the  estate  than  its  value;  that  the  mortgagor  had  by  his 
[187]  answer  refused  to  redeem;  and  submitted  to  be  foreclosed; 
and  that  the  devise  by  B.  to  the  plaintiflT  was  void  at  law  for  want  of 
a  surrender  to  the  use  of  the  will:  Yet  it  was  decreed  to  C,  as  the 
personal  representative  of  A.,  inasmuch  as  there  was  no  foreclosure, 
nor  release  of  the  equity  of  redemption  in  the  lifetime  of  the  mort- 
gagee, and  on  appeal  the  decree  was  affirmed(/). 

If  on  a  mortgage  being  forfeited,  the  mortgagor  release  to  the  heir 
of  the  mortgagee  in  fee,  yet  the  executor  of  the  mortgagee  shall 
have  the  benefit  of  the  estate,  although  there  be  no  debts.  So,  in  the 
.case  of  a  foreclosure  of  a  mortgage,  or  that  the  mortgage  be  of  so  an- 
cient a  date,  as  in  the  ordinary  course  of  the  court  it  is  not  redeem- 
able, it  shall  belong  to  the  personal  representative  of  the  mortgagee; 
for  unless  the  mortgagee  were  actually  in  possession,  it  shall  be  con- 
sidered as  personal  estate(?<).  So,  where  a  wife  had  a  mortgage  in 
fee  of  a  copy-hold,  and  died  leaving  issue,  and  the  issue  was  admit- 
ted, and  died,  and  then  the  husband,  as  administrator  to  his  wife, 
claimed  the  copy-hold  as  a  mortgage,  and  consequently  part  of  the 
wife's  personal  estate;  it  was  decreed  to  him  against  the  heir  at  law, 
although  the  latter  had  been  admitted(y).  So,  a  mortgage  of  an  in- 
heritance to  a  citizen  of  London  hath  been  held  to  be  part  of  his  per- 
sonal estate,  and  divisible  according  to  the  custom(t<;). 

[188]  But  if  the  possessor  of  the  estate  conceive  himself  to  hold 
it  in  fee,  liis  interest  will  not  be  considered  as  personal  against  his 
evident  intention;  as  if  an  absolute  sale  of  an  estate  in  mortgage  be 
fraudulently  made  by  the  mortgagee  to  a  third  person,  the  purchase- 

(r)  Canning  v.  Hicks,  2  Ca.  Cha.  367.     1  Eq.  Ca.  Abr.  273.  328.     Vid. 

187.     S.  C.  1  Vera.  412.  Awdley  v.  Awdley,  2  Vern.  193. 

(s)  Ellis  V.  Guavas,  2  Chan.  Ca.  50.  (u)  Awdley  v.  Awdley,  2  Vern.  193. 

Canning  v.  Hicks,  187.  (v)  Turner  v.  Crane,  1  Vern.  170. 

(<)  Tredway  V.  Fotherley,  2  Vern.  (u-) 'riiornborough  v.  Baker,  1  Chan. 


188  OF  CHATTELS  REAL  [bOOK  II. 

money,  on  its  beins;  refunded  by  the  vendor  after  the  death  of  the 
vendee,  will  go  to  his  heir;  for  the  intention  of  the  vendee  was  to 
alter  the  nature  of  his  property,  and  to  invest  the  money  in  the  pur- 
chase of  land,  and  therefore  the  court  will  consider  it  as  real  pro- 
perty(.r).  So,  if  it  appear  to  be  the  intention  of  the  mortgagee  that 
the  mortgage  should  pass  by  devise  as  a  real  estate,  the  executor  will 
not  be  entitled(y).  As,  where  the  testator  had  several  mortgages, 
and  among  the  rest  a  mortgage  in  fee  of  lands  in  Whiteacre,  and  de- 
vised his  mortsfases  to  his  two  daughters,  their  executors  and  admin- 
istrators,  and  his  lands  in  AVhiteacre,  on  which  he  had  entered  on 
forfeiture  of  the  mortgage,  to  them  and  their  heirs:  M.,  one  of  the 
daughters,  died  without  issue;  H.,  her  husband  and  administator, 
claimed  a  moiety  of  the  lands  in  Whiteacre  as  a  mortgage  not  fore- 
closed, nor  of  which  the  equity  of  redemption  was  released,  and 
therefore  part  of  his  wife's  personal  estate;  but  it  was  held,  that  al- 
though it  were  a  mortgage,  as  between  a  mortgagor  and  mortgagee, 
and  therefore  personalty;  yet  the  testator's  intention  was,  that  it 
should  pass  to  his  daughters  as  a  real  estate  to  them  and  their  heirs, 
and  that  inasmuch  as  M.  was  dead  Avithout  issue,  it  descended  to  her 
[189]  sisters  as  her  heirs  at  law,  and  that  H.  was  entitled  to  no  part  of 
the  same  in  the  nature  of  personal  estate(z).  But  where  a  mortgage 
was  devised  as  real  estate  after  a  decree  of  foreclosure  nisi,  that  is, 
unless  cause  were  shown  to  Ihe  contrary,  it  was  held  to  be  personal 
estate  for  payment  of  debts,  if  the  assets  were  insufficient,  although 
considered  as  real  estate  between  the  devisor  and  devisee(f/).  A 
mortgage  will  not  pass  as  land  under  a  general  description  applicable 
to  it  in  point  of  locality,  if  from  other  circumstances  it  be  evident 
that  the  owner  regarded  it  as  personal  property(6). 

Where  money  secured  by  mortgage,  to  which  the  executor  was 
entitled  at  law,  was  articled  to  be  laid  out  in  land,  and  settled  on  the 
issue  of  the  marriage,  on  special  verdict  it  was  adjudged  to  be  bound 
by  the  articles(c).  And  it  has  been  held,  that  the  heir  of  a  mort- 
gagee in  fee,  if  he  pay  the  executor  the  mortgage-money,  may  take 
the  benefit  of  a  foreclosure  to  himself(^). 

If  the  parson  of  a  church  be  seised  of  the  advowson  in  fee,  and 
die,  in  such  case  the  heir,  and  not  the  executor,  shall  present;  be- 
cause at  the  same  time  the  avoidance  rests  in  the  executor,  the  in- 
heritance descends  to  the  heir;  and  where  two-thirds  concur  in  an 
[190]  instant  of  time,  the  elder  shall  be  preferred(e).  But  if  A.  be 
seised  of  an  advowson  in  gross,  or  in  fee  appendant  to  a  manor,  and 
an  avoidance  happen  in  his  lifetime,  his  executor,  and  not  his  heir, 
shall  present,  inasmuch  as  it  was  a  chattel  vested,  and  severed  from 

Ca.  285.    Winn  V.  Littleton,  1  Vern.  4.  and  Bea.  45. 

{x)  Cotton  V.  lies,  1  Vern.  271.  {h)  Martin  v.  Mowlin,  2  Burr.  969.  • 

{y)  Martin  v.  Mowlin,  2  Burr.  969.  (c)  Vid.  Lechmere  v.  Earl  of  Car- 

(z)  Noys  V.  Mordant,  2  Vern.  581.  lisle,  3  P.  Wms.  217. 

S.  C.  Gilb.  Rep.  in  Chan.  2.  S.  C.  {d)  Clarksonv.  Bowyer,2  Vern.  67. 

Chan.  Prec.  265.  '  (e)  11  Vin.  Abr.  169.  3  Bac.  Abr.  61. 

(a)  Garret  v.  Evers,  Moseley,  364,  Holt  v.  Bishop  of  Winchester,  3  Lev. 

and  see  Silberschildt  v.  Schiott,  3  Ves.  47.     3  Salk.  280.  S:  C. 


CHAP,  r v.]  WHICH  GO  TO  THE  HEIR.  19" 

the  manor(/).  But  if  the  next  presentation  be  granted  to  A.,  his 
heirs  and  assigns,  it  is  clearly  a  mere  chattel,  notwithstanding  the 
word  "heirs:"  It  is  but  one 'turn,  and  where  the  thing  is  a  chattel, 
the  word  "  heirs"  cannot  make  it  an  inheritance(^).  So  if  a  man 
grant  the  two  next  presentations  of  a  churcli,  they  are  chattels,  and  if 
the  grantee  die,  the  executor  shall  have  them,  and  not  the  heir(A). 

If  a  party  having  the  inheritance  of  tithes  die  after  the  tithes  are 
set  out,  they  shall  go  to  his  executor,  and  not  to  his  heir(?'). 

The  interest  denominated  the  year,  day,  and  waste,  which  has  been 
already  explained(A;),  is  but  a  chattel;  and  although  granted  by  the 
crown  to  A.,  and  his  heirs,  shall  go  to  his  executors(/). 

In  regard  to  the  estate  of  a  lunatic,  the  Court  of  Chancery  will 
change  the  nature  of  the  property  so  as  to  alter  the  succession,  if 
[191]  the  ii-kterest  of  the  owner,  which  is  solely  considered,  shall 
require  it.  Between  the  real  and  personal  representatives  of  a  lu- 
natic there  is  no  equity.  They  are  both  volunteers,  and  must  take 
what  they  find  at  his  death  in  the  condition  in  which  they  find  it. 
Thus  the  produce  of  timber  on  a  lunatic's  estate,  cut  and  sold  by 
an  order  of  the  court,  founded  on  the  master's  report  that  it  would 
be  for  the  benefit  of  a  lunatic,  as  some  of  the  timber  was  in  a  state 
of  decay,  and  injuring  the  rest,  was  on  his  death  held  to  be  personal 
assets,  and  incapable  of  a  transmutation  for  the  benefit  of  the  heir(m). 

Charters  and  deeds,  court  rolls,  and  other  evidences  of  the  land, 
as  well  as  the  chests  in  which  they  are  usually  kept,  shall  pass  with 
the  land  to  the  heir,  and  shall  not  go  to  the  executor(«).  So,  where 
a  bill  w^as  filed  in  chancery  for  an  antique  horn,  with  an  ancient 
inscription,  on  the  ground  that  it  had  immemorially  gone  with  the 
plaintiff's  estate,  and  been  delivered  to  his  ancestors  by  which  to 
hold  the  land,  the  court  was  of  opinion,  that  if  the  land  were  of  the 
tenure  called  cornage,  the  heir  had  a  title  to  this  monument  of  an- 
tiquity at  law(o).  So,  if  land  be  sold  by  A.  on  condition,  that  if  the 
purchase-money  be  not  paid  by  a  limited  day,  then  that  he  shall  re- 
[192]  enter;  and  A.  die;  here,  although  there  be  a  debt  due  to  the 
executor,  and  no  land  descended  to  the  heir  of  A.  yet  the  heir  shall 
have  the  deeds,  inasmuch  as  upon  him  the  condition  descended(7j). 
But  if  A.  deliver  a  charter  to  B.  to  redeliver  to  him,  and  his  heirs, 
having  no  title  to  the  land,  his  executor,  and  not  his  heir,  shall  have 
this  charter,  because  it  was  only  a  chattel  without  the  land(<7). 
So,  if  the  writings  of  an  estate  are  pawned  or  pledged  for  money 

(/)  11  Vin.  Abr.  145.     Fitz.  N.  B.  Ves.  jun.  69.  75.  note  b.     4  Bro.  Ch. 

33.  Rep.  231.  397.     S.  C.  vid.  ex   parte 

(£■)  11  Vin.  Abr.  173.    Br.  Chattels,  Marchioness  of  Annandalc,  Ambl.  81. 

pi.  6.  ('0  Off.  Ex.  63.     3  Bar;.  Abr.  65.  L. 

\h)  11  Vin.  Abr.  173.    Br.  Chattels,  of  Test.  381.   Vid.  Atkinson,  admx.  v. 

pi.  20.  Baker,  4  Term  Rep.  229. 

(i)  Com.  Dig.  Biens,  A.  2.    Off.  Ex.  (o)  Bac.  Abr.  65.     Pusey  v,  Pusey, 

60.     3  Bac.  Abr.  61.  1  Vern.  273.     Ilarg.  Co.  Litt.  107. 

a)  Vid.  supr.  144.  (p)  Off.  Ex.  63. 

(/)  11  Vin.  Abr.  175.     Off.  Ex.  54.  (y)  11  Vin.  Abr.   145.     Fitzh.  Dc- 

(ra)  Oxenden  v.  Lord  Compton,  2  tinue,  pi.  7. 


192  OP  CHATTELS  PERSONAL  [bOOK  11. 

lent,  they  are  considered  as  chattels  ni  the  hands  of  the  creditor,  and 
in  case  of  his  decease,  they  will  go  to  his  personal  representative,  as 
the  party  entitled  to  the  benefit  accruing  from  the  loan(z). 


Sect.  II. 

Of  chattels  personal  which  go  to  the  heir:  and  herein  of  heir 

loo?ns. 

With  respect  to  chattels  personal,  and  animate,  the  heir  has  a 
qualified  possessory  property  in  deer  in  a  park,  hares  or  rabbits  in 
a  warren,  doves  in  a  dove-house,  pheasants  and  partridges  in  a 
[193]  mew,  swans,  though  unmarked,  in  a  private  moat  or  pond, 
or  kept  in  water  within  a  manor,  or  at  large,  if  marked,  and  in  bees 
in  a  hive,  or,  as  it  has  been  held  by  some  authorities,  though  not  in  a 
hive,  ratiojie  soli,  in  respect  of  his  ownership  in  the  soil.  He  is, 
also,  entitled  to  fish  in  a  private  pond  or  piscary.  These  various  ani- 
mals shall  all  go  with  the  inheritance,  for  without  them  it  is  incom- 
plete(a).  And  such,  we  may  remember,  is  the  property  that  shall 
vest  in  the  executor,  if  the  testator  had  a  lease  for  years  in  the  land((?>). 

With  regard  to  chattels  personal,  and  vegetable,  not  only  timber 
trees,  as  oak,  beech,  chesnut,  walnut,  ash,  elm,  cedar,  fir,  asp,  lime, 
sycamore,  birch,  poplar,  alder,  larch,  maple,  and  horn-beam,  but 
also  trees  of  every  other  description  belonging  to  the  soil,  and  un- 
less severed  during  the  life  of  the  ancestors,  are  the  property  of  the 
heir(c).  So,  likevvise,  are  all  species  of  fruits,  if  hanging  on  the 
tree  at  the  time  of  his  ancestor's  death.  Grass,  also  growing,  though 
ready  to  be  mown  for  hay,  shall  descend  with  the  land  to  the  heir; 
for  these  are  either  natural,  or  permanent  profits  of  the  earth(^). 
He  is  also  entitled  to  such  hedges  and  bushes  as  are  standing  at  that 
time(e). 

[194]  But,  as  I  have  already  stated(/),  corn,  which  is  raised  by 
yearly  cultivation,  shall  go  to  the  executor,  to  compensate  for  the 
expense  and  labour  of  tilling,  manuring,  and  sowing  the  lands,  and 
for  the  encouragement  of  husbandry,  which  is  of  so  public  a  con- 
cern (,§•). 

The  same  law,  on  a  similar  principle,  extends  to  other  emblements, 
as  hops,  saffron,  hemp,  and  the  like(A). 

It  has  been  asserted  by  a  learned  writer(i),  that  roots  of  all  kinds, 

(z)  3  Bac.  Abr.  65.     Noy.  Max.  50.  Abr.  G4.     Off.  Ex.  59.     Swinb.  934, 

(a)  Haro-.  Co.  Litt.  8.     Com.  Dig.  935,  p.  7,  s.  10. 
Biens,  B.  "l  Roll.  Abr.  916.    Off.  Ex.  {d)  Swinb.  934,  935,  p.  7,  s.  10. 

53.     11  V^in.  Abr.  166.     2  Burn.  Just.  (e)  Off.  Ex.  59.     3  Bac.  Abr.  64. 

369.     7  Co.  15  b.     3  Bac.  Abr.  64.     2  (/)  Supr.  150. 

Bl.  Com.  427.  {g)  Off.  Ex.  59.     3  Bac.  Abr.  64. 

Qi)  Harg.  Co.  Litt.  8,  note  10.     Vid.  {h)  Ibid, 

supr.  141.  148.  (0  Off.  Ex.  62,  63.    Vid.  also.  Gilb. 

(c)  Com.  Dig.  Biens.  H.     3  Bac.  L.  ofEv.  249. 


CHAP.  IV.]  WHICH  GO  TO  THE  HEIR.  194 

such  as  parsnips,  carrots,  turnips,  and  skirrets,  shall  go  to  the  heir, 
since  they  cannot  he  taken  without  digging  and  hreaking  the  earth, 
which  must  of  necessity  be  a  detriment  to  the  inheritance.  It  seems, 
however,  perfectly  clear,  that  these  articles,  as  requiring  an  annual 
cultivation,  fall  within  the  like  reasoning,  which  the  law  has  adopt- 
ed in  regard  to  corn,  and  consequently  shall  belong  to  the  execu- 
tor(>t). 

But  things  whicli  produce  no  annual  profit  are  not  comprehended 
under  the  name  of  emblements;  therefore,  although  the  testator 
himself  hath  sown  the  land  v/ith  acorns,  or  planted  it  with  oaks, 
[195]  alders,  elms,  or  other  trees,  they  shall  not  be  classed  as  em- 
blements, but  shall  belong  to  the  heir(/).  So  if  the  testator  improved 
the  natural  produce,  either  by  trenching,  or  by  sowing  hay-seed, 
such  increase  shall  go  to  the  heir;  for  the  executors  have  no  pro- 
perty in  the  natural  produce,  and  in  such  instances  that  which  was 
artificial  cannot  be  distinguished  from  it(m).  Wall  fruit  also,  though 
greatly  improved  b}-  culture,  seem  to  fall  within  the  same  principle 
and  to  be  the  property  of  the  heir.  But  the  executor,  we  have  seen, 
is  entitled  to  hops,  though  growing  on  ancient  roots,  for  they  are 
produced  by  manurance  and  industry(?i). 

Although  timber  trees  originally  belong  to  the  soil,  yet,  if  A. 
seised  in  fee,  sell  the  timber  trees  on  his  land  to  B.  and  B.  died  be- 
fore they  are  felled,  they  shall  belong  to  his  executor(o).  So,  if  a 
man  sell  his  land,  reserving  the  timber  trees,  they  remain  in  him  by 
particular  contract,  as  chattels  distinct  from  the  soil,  and  shall  go  to 
his  executor.  For,  in  both  these  cases,  in  construction  of  law,  they 
are  abstracted  from  the  earth,  although  they  are  not  actually  severed 
by  the  axe(/'). 

But,  if  a  tenant  in  tail  sell  the  timber  trees  on  his  soil,  such  sale 
will  not  be  effectual  without  docking  the  intail,  unless  they  were 
actuall}^  felled  in  the  lifetime  of  such  tenant,  otherwise  they  will 
[196]  descend  with  the  land-to  the  issue(<7).  So,  if  A  lease  lands 
for  life,  or  years,  excepting  the  trees,  they  continue  parcel  of  the 
inheritance,  so  long  as  they  are  annexed  to  the  land,  and  descend 
with  it  to  the  heir.  So  if  a  feoffment  be  made  excepting  the  trees, 
and  the  feoffee  afterwards  buy  them,  they  are  re-annexed  to,  and 
become  part  of  the  inheritance(r).  So,  where  a  lessee  for  years 
purchased  trees  growing  on  land,  and  had, liberty  to  cut  them  within 
eighty  years,  and  he  afterwards  bought  the  inheritance  of  the  land 
and  died;  it  was  held  that  the  executor  should  not  have  the  trees, 
for  although  they  were  once  chattels,  yet  by  the  purchase  of  the  in- 
heritance they  were  re-uliited  to  the  land(.s'). 

(/O  Harg.  Co.  Lilt.  55  b.   2131.  Com.  (o)  .3  ]}ac.  Abr.  Gl.     0 IT.  Ex.  51),  GO. 

123.  Ip)  :i  Uac.  Abr.  Gl.     OlF.  Ex.  GO. 

(/)  2  Bl.  Com.    123.     Com.  Dig.  (y)  ll)id.     Stukeloy  v.  Biillcr,  Hob. 

Bieris.  G.     1  Harg.  Co.  Litt.  55  b,  173.     II  Co.  50. 

(m)  Com.  Dig.  Bicns.  G.     1  Gilb.  (?)  Com.  Dig.  Biens.  11.    llCo.50. 

L.  of  Ev.  219.     Harg.  Co.  Litt.  5G.  4  Co.  G3  b. 

(n)  Harg.  Co.  Litt.  55  b.     Cro.  Car.  (.v)  II  Vin.  Abr.  168.     Ow.  49. 
515.     Vid.  siipr.  150. 
17 


190  OF  IIETR-LOOMS.  [bOOK  II. 

Such  personal  chattels  inanimate,  as  go  to  the  heir  with  Ihe  in- 
heritance, and  not  to  the  executor,  arc,  for  the  most  part,  denomi- 
nated heir-looms.  The  termination  loom,  in  tlie  Saxon  language, 
signiiies  a  limb,  or  member;  consequently  heir-looms  denote  limbs 
or  members  of  the  inheritance.  They  are  such  things  as  cannot 
be  taken  away  without  damaging,  or  dismembering  the  freehold. 
Whatever,  therefore,  is  strongly  affixed  to  the  inheritance,  and 
cannot  be  severed  from  it  without  violence  or  damage,  quod  ah 
[197]  mdihxis  non  facilh  revellltur,  is  a  meml)cr  of  tlie  same,  and 
shall  pass  to  the  heir,  as  cliimney-pieces,  pumps,  tables,  and  benches 
which  have  been  long  fixed(/).  The  law  is  the  same  in  regard  to 
coppers,  leads,  pales,  posts,  rails,  window-shutters,  windows,  whether 
of  glass  or  otherwise,  wainscots,  doors,  locks,  keys,  millstones  fixed 
to  a  mill,  anvils,  and  the  like.  They  are  annexed  to  the  freehold, 
and  are  held  to  form  part  of  it(w). 

xVlthough  pictures  and  looking-glasses  generally  go  to  the  execu- 
tor, as  personal  chattels,  yet  it  has  been  held,  that  if  they  are  put  up 
instead  of  wainscot,  they  shall  belong  to  the  heir.  He  has  a  right 
to  the  house  entire  and  undefaced(.r). 

But  at  so  remote  a  period  as  that  of  Henry  the  Seventh,  it  was 
adjudged,  that  if  the  lessee  annex  any  chattel  to  the  house  for  the 
purposes  of  his  trade,  he  may  disunite  it  during  the  continuance 
of  his  interest,  if  he  can  do  so  without  prejudice  to  the  freehold. 
And  therefore,  that  if  such  lessee  be  a  dyer,  and  erect  a  furnace  in 
the  middle  of  the  floor  not  affixed  to  any  wall,  he,  and  by  conse- 
quence his  executor,  may  take  it  down  during  the  term,  if  it  can 
be  removed  without  injury  to  the  inheritance;  that  while  the  term 
[198]  continues,  he  is  the  owner  both  of  the  floor  and  of  the  furnace, 
but  tliat  if  it  be  not  severed  while  his  interest  subsists,  it  goes  to  the 
lessor  of  his  heirs,  inasmuch  as  the  lessee  is  not  master  of  both  the 
subjects  of  alteration(y). 

In  modern  times  the  doctrine  of  annexation  has,  on  principles  of 
public  policy,  been  gradually  relaxing;  therefore,  if  things  of  this 
species  can  be  removed  without  injury  to  the  fabric  of  the  house, 
or  the  soil  of  the  freehold,  they  shall  in  general  be  the  property  of 
the  executor(r).  Thus,  modern  tables,  although  fastened  to  the 
floor,  grates,  irons,  ovens,  jacks,  clock-cases,  in  whatever  mode 
annexed  to  the  freehold,  have  by  more  recent  cases  been  held  to 
belong  to  the  executor(a).  So  also  have  hangings,  tapestry,  beds 
fastened  to  the  ceiling,  and  iron  backs  to  chimneys(6).     So,  like- 

(0  2  Bl.  Com.  427,  428.     Ld.  Petre  Salk.  368.     L.  of  Test.  380. 

V.  Heneage,  12  Mod.  520.  (z)  3  Eac.  Abr.  G3,  in  note.     Lord 

(w)  4  Burn.  Eccl.  L.  25fi.     3  Bac.  Dudley  v.   Lord  Warde,  Ambl.    113. 

Abr.  f)3.     Off.  Ex.  G2.     4  Co.  63,  64.  Harvey  v.  Harvey,  2  Str.  1141. 

Swinb.  p.  6,  s.  7.  («)  4  Burn.  Eccl.  L.  257. 

(x)  L.  of  Test.  380,  381.     Cave  v.  {b)  4  Burn.  Eccl.  L.  256.  259.  L.  of 

Cave,  2  Vern.  508.  Ni.   Pr.  34.  Harvey  v.  Harvey,  2  Str. 

(jr)  3  Bac.  Abr.  63.     Keilw.  88.  Ow.  1141.     Ex  parte  Quincy,  1  Atk.  477. 

70,  71.     Off.  Ex.  60,  61.     Ex  parte  Beck  v.  Rebow,  1  P.  Wms.  94. 
Quincy,  1  Atk.   477.     Poole's  Case, 


CHAP.  IV.]  OF  HEIR-LOOMS.  198 

wise  in  favour  of  trade,  brewing  vessels,  vats  for  dyers,  and  soap- 
boilers' coppers.(l)  So  also  furnaces,  though  fixed  to  the  freehold, 
and  purchased  with  the  house(c).  It  has  also  been  ruled,  tliat  a 
cyder  mill(2)  erected,  on  the  land  should  go  to  the  executor,  and  not 
to  the  heir.  And  in  a  case  where  the  litigating  parties  were  the 
executor  of  the  tenant  for  life,  and  the  remainder-man,  the  Lord 
[199]  Chancellor  seemed  to  be  of  opinion  that  a  fire-engine  set  up 
for  the  benefit  of  a  colliery,  as  between  heir  and  executor,  might  in 
some  instances  be  considered  as  personal  property(f/).  Such  latitude 
encourages  improvements,  and  is  beneficial  to  trade.  But  if  the  sub- 
ject be  not  capable  of  removal  without  injury  to  the  freehold;  as,  if 
a  furnace  is  so  affixed  to  the  wall  of  a  house  as  to  be  essentiel  to  its 
support,  it  shall  not  be  taken  away  by  the  executor(e). 

The  ancient  jewels  of  the  crown  are  also  held  to  be  heir-looms, 
for  they  are  necessary  to  maintain  the  state,  and  to  support  the  dig- 
nity of  the  existing  sovereign(y). 

So,  also  the  collar  of  S.  S.  is  an  heir-loom,  and  shall  go  to  the 
heir(^). 

There  are  also  other  personal  chattels,  which  descend  to  the  heir 
in  the  nature  of  heir-looms;  as  ancient  portraits  of  former  owners 
of  the  mansion,  though  not  fastened  to  the  wall,  a  monument  or 
tombstone  in  a  church,  or  the  coat  of  armour  of  his  ancestor  there 
hung  up,  with  the  pennons  and  other  ensigns  of*  honour  suited  to 
his  degree(A).  And  the  court  will  order  an  inspection  of  articles 
claimed  by  the  plaintiff  as  heir-looms,  in  a  chest  at  the  bankers  of 
the  defendant,  who  insists  by  his  answer  that  he  has  a  lien  on  the 
contents  of  the  chest(/).  Pews  also  in  a  church  may  immemorially 
[200]  descend  from  the  ancestor  to  the  heir,  as  appurtenant  to  his 
house(k). 

By  the  special  custom  of  some  places,  carriages,  and  also  various 
articles  of  household  furniture  and  implements  may  be  heir-looms. 
But  such  custom  must  be  strictly  proved  (/). 

(c)  Poole's  case,  Salk,  368.     L.  of  25G.     11  Vin.  Abr.  1G6. 

Ni.  Pr.  31.     Ex  parte  Quincy,  1  Atk.  (/)  2  Bl.   Com.  428.     Harg.  Co. 

477.     Lawton  v.  Lawton,  3  Atk.  14.  Litt.  18  b. 

16.     11  Vin.  Abr.  167.  172.     Squier  (g)  11  Vin.  Abr.  167.     Ow.  124. 

V.  Mayer,  2  Freem.  249.     Harg.  Co.  (A)  2  J31.  Com.429.   Harg.  Co.  Litt. 

Litt.  53,  note  5.  18  b. 

(f/)  Lard  Hardvvicke  in  Lawton  v.  (i)  Earl  of  Macclesfield  v.  Davis,  3 

Lawton,  3  Atk.  15.     See  also  Elwes  Vcs.  &  Bea.  16. 

V.  Maw,  3  East  T.  Hep.  38.  (/.)  2  Bl.  Clora.  529<     12  Co.  105. 

(e)  Off.  Ex.  61.     4  Burn.  Eccl.  L.  (/)  ibid.  428.     Harg.  Co.  Litt.  18  b. 


(1)  Gale  V.  Ward,  14  Mass.  Rep.  352.  But  as  between  mortgagor  and  mortgagee 
who  has  taken  possession,  a  kettle  in  a  fulling  mill  used  for  dying  clolh,  being  set  in 
brick  work,  i>assed  to  the  mortgagee.      Union  Jiank  v.  Emerson,  15  Muss.  licp.  15'J. 

(2)  llolmiiH  V.  Trcmper,  2>)  .lohns.  Hop.  29.  See  Hermance  v.  Vcrnoi/,  G  Jolins.  Kcp.  5, 
and  Jiiatllcij  v.  Overhoudt,  13  Johns.  lii.[i.  40i,  JMil/cr  v.  I'lainb,  G  Cow.  Rep.  66.'., 
where  llie  question  was  Ijetweeii  the  vendor  and  vendee  ol  land. 


200  OF  HEIR-LOOMS.  [bOOK  11. 

On  the  other  hand,  a  granary  built  on  pillars  in  Hampshire  is  by 
custom  a  cliattcl,  and  l^elongs  to  the  exccutor(?n). 

The  heir  is  likewise  entitled  to  other  personal  chattels,  inanimate, 
to  which  this  appellation  of  heir-looms  does  not  belong.  An  an- 
nuity, although  only  a  chattel  interest,  is,  as  we  have  seen(n), 
descendible  to  the  heir(o).  So,  a  grant  from  the  crown  of  one 
thousand  pounds  per  annum  out  of  the  four  and  a  half  per  cent 
Barbadoes  duty,  with  collateral  security  out  of  other  revenue,  al- 
though a  mere  personal  chattel,  having  no  relation  to  lands  or  te- 
nements, nor  partaking  of  the  nature  of  a  rent,  was  adjudged  to  the 
heir(yj).  But  such  an  annuity  is  personal  property,  and  will  pass 
under  a  will  attested  by  two  witnesses,  by  a  residuary  clause,  be- 
queathing all  the  rest,  residue  and  remainder  of  the  personal  estate 
to  the  executor(9).  So  where  A.  on  his  marriage  settled  land  on 
himself  and  his  wife,  and  the  issue  of  the  marriage,  with  remainder 
over,  and  assigned  to  trustees  bankers  assignments  established  by 
act  of  parliament,  and  made  a  perpetual  annuity  redeemable  by 
parliament,  and  directed  to  go  as  personal  estate,  and  limited  the 
profits  thereof  to  the  same  person  as  by  the  settlement  would  be 
entitled  to  the  land,  and  if  the  annuities  should  be  redeemed  by 
parliament,  the  money  should  be  invested  in  the  land,  to  be  settled 
to  the  same  uses,  and  A.  died;  it  was  decreed  that  these  annuities 
being  thus  redeemable  were  to  be  considered  as  money  directed  to 
be  laid  out  in  lands,"  and  to  be  as  real  estate,  which  after  the  wife's 
death  should  go  to  the  settler's  heir(7').  On  the  other  hand,  a  per- 
petual annuity  of  4000/.  issuing  out  of  the  revenue  of  the  post-office, 
but  redeemable  upon  payment  of  100,000/.  when  the  state  of  affairs 
would  permit,  which  sum,  when  paid,  was  to  be  laid  out  in  the  pur- 
chase of  lands  to  be  settled  in  manner  there  mentioned,  was  not  con- 
sidered as  money  to  be  laid  out  in  land,  but  merely  as  a  perpetual 
annuity,  inasmuch  as  there  was  no  certainty  of  the  redemption(^). 

Where  a  copyhold  tenement  was  burnt  down,  and  money  col- 
lected on  briefs  for  rebuilding  it  was  lodged  in  the  hands  of  a  guar- 
[201]  dian  of  the  tenant  in  tail,  who  died  under  age;  it  was  held 
that  the  money  should  go  to  his  heir,  both  because  of  the  intail,  and 
because  it  was  copyhold;  but  that  allowance  should  be  made  to  his 
personal  representative  for  the  amount  of  the  interest  of  the  money 
from  the  time  it  was  so  lodged  to  the  death  of  the  infant(/). 

If  A.  recover  land  and  damages,  or  a  deed  relative  to  land  and 
damages,  and  die  before  execution,  his  heir  shall  have  execution  for 
the  land  or  deed,  and  the  executor  for  the  damages(w). 

im)  11  Vin.  Abr.  154.  (r)  Disher  v.  Disher,  1  P.  Wms. 

In)  Vid.  supr.  118.  204. 

(o)  Vin.  Abr.  153.  Argdo.     Roper  v.  (a)  Countess  of  Holderness  v.  Mar- 

Radcliif,  10  Mod.  237.  vid  also  11  Vin.  quis  of  Carmarthen,  1  Bro.  C.  Rep.  377, 

Abr.  146,  pi.  25.     Dr.  &  Stud.  90.  and  1  P.  Wms.  206,  in  note.  S.  C. 

(p)  Com.  Dig.  Bic'.is,  A.  2.     Earl  (/)  Com.  Dig.  Eiens,  B.     Rook  v. 

of  iStaflbrd  v.  Buckley,  2  Ves.  170.  Warth,  1  Ves.  460. 

(/7)Aubin  V.Daly,  4  Barn.  &  Aid.  59.  {u)  11  Vin.   Abr.  145.  169.     Bea- 


CHAP.  IV.]  OF  CHATTELS.  201 

Sect.  III. 
Of  chattels  which  go  in  succession. 

Chattels  given  to  corporation  aggregate,  as  the  dean  and  chap- 
ter of  a  cathedral  church,  the  mayor  and  commonalty  of  a  city,  the 
head  and  fellows  of  a  college,  shall  go  in  succession;  but  in  case  of 
a  sole  corporation,  whether  created  by  charter  or  prescription, 
as  a  bishop,  parson,  vicar,  master  of  a  hospital,  and  the  like,  chat- 
tels real  and  personal  in  possession,  and  in  action,  belong  to  their 
[202]  respective  executors.  Such  property  shall  no  more  go  to 
their  successors  than  it  shall  go  to  the  heir;  for  succession  in  a  body 
politic  is  inheritance  in  case  of  a  private  person(a).  So,  if  the 
chattel  be  granted  to  such  sole  corporation  and  his  successors: — as, 
if  a  term  for  years  be  granted  to  a  bishop  and  his  successors,  his 
executors  shall  have  it(6).  So  if  an  obligation  or  other  specialty- 
be  executed  to  him  and  his  successors,  he  can  take  it  only  as  a  pri- 
vate individual,  and  not  in  his  corporate  capacity (c). 

But  by  custom  a  corporation  sole  may  take  goods  and  chattels  in 
succession,  as  in  London,  where  the  chamberlain  is  a  special  corpo- 
ration for  taking  bonds  for  orphanage  money.  And  such  custom 
has  been  frequently  adjudged  good(cff).  Also  in  some  instances, 
particularly  of  chattels  in  action,  the  law  is  the  same  without  a  cus- 
tom(e).  As  if  the  president  of  the  college  of  physicians  recover  in 
debt  against  a  party  for  practising  without  a  licence,  his  successor, 
and  not  his  executor,  shall  have  a  scire  facias  on  the  judgment,  for 
the  debt  was  recovered  as  due  to  him  and  the  college(y). 

So,  if  the  master  of  an  hospital  recover  in  that  character  the  ar- 
[203]  rears  of  an  annuity  due  to  the  hospital,  and  die,  they  go  to  his 
successor,  and  not  to  his  executor(^). 

mond  V.  Long,  Cro.  Car.  227.     Off.         {d)  Harg.  Co.  Litt.  9  a.  note  1.     4 

Ex.   93.      Com.   Dig.   Execution,  E.  Co.   64  b.     Wilford,  Chamberlain  of 

1  Roll.  Abr.  889.  London,  Cro.  Eliz.  4G4.  682. 

(a)  Com.  Dig.  Biens,  C.  Franchises         (e)  Harg.  Co.  Litt.  9  a.  note  1.    Vin 

F.  16.    4  Co.  G5.    Harg.  Co.  Litt.  9  a.  Abr.  tit.  Corporation,  L. 

{h)  1  Roll.  Abr.  515.  (/)  1  Roll.  Abr.  515. 

(c)  4  Co.  65.    Dy.48a.    2B1.  Com.  (aO  II^'^- 

430,  431. 


203  OF  CHATTELS  WHICH  GO  [bOOK  H. 


Sect.  IV. 

Of  chattels  which  go  to  a  devisee  or  remainder-man:  and  herein 
of  emblements,  and  heir-looms. 

A  DEVISEE  of  the  lands  is  entitled  to  all  those  chattel  interests 
which  have  been  stated  to  belong  to  the  heir(a);  and  in  one  re- 
spect he  has  an  advantage  to  which  the  heir  is  not  entitled.  Such 
devisee,  and  not  the  executor  of  the  devisor,  shall  have  the  emble- 
ments. Thus  it  has  been  held,  that  if  A.,  seised  in  fee  of  land,  sow, 
and  devise  it  to  13.  for  life,  remainder  to  C.  in  fee,  and  die  before 
severance,  B.  shall  have  the  emblements,  and  not  the  executor  of  A.: 
Or  that  if  B.  die  before  severance,  his  executor  shall  not  have  tliem, 
but  they  shall  go  to  him  in  remainder:  Or  that  if  the  devisee  be  only 
to  B,,  and  B.  die  before  severance,  there  his  executor  shall  have 
them,  although  B.  did  not  sow.  These  points  were  so  adjudged  on 
the  principle,  that  the  devisee,  in  relation  to  the  chattels  belonging 
to  the  lands,  stands  in  the  place  of  the  executor  by  the  express  terms 
of  the  will(6).  This  distinction,  how[204]ever,  seems  not  very 
reasonable(c):  It  appears  strange,  that  the  corn  should  pass  lo  the 
devisee  as  appurtenant  to  the  soil,  and  yet  shall  not  descend  to  the 
heir.  But  a  devisee  of  the  goods,  stock,  and  moveables  is,  it  seems, 
entitled  to  growing  corn  in  preference  both  to  the  devisee  of  the  land 
and  the  executor(^). 

In  respect  to  the  rights  of  the  executor  of  tenant  for  life,  as  opposed 
to  those  of  the  remaintler-man,  it  is  a  general  rule,  that  where  a  party 
hath  an  uncertain  interest  in  land,  and  his  estate  determines,  yet  he 
hath  a  title  to  the  corn  that  is  sown,  and  the  other  emblements  on 
the  land,  though  the  property  of  the  soil  be  altered(e).(l)  With  the 
view  of  giving  all  possible  encouragement  to  agriculture,  the  law 
has  created  a  property  in  the  emblements  distinct  and  separate  from 

(a)  2  Bl.  Com.  428.  {d)  Winch.  51.     Cox  v.  Godsalve, 

(6)  Winch.  51.    Gilb.  L.  of  Ev.  248.  Holt's  MSS.  157.    L.  of  N.  Pri.  34. 

Vid.  Grantham  v.  Hawley,  Hob.  132.  Swinb.  933,  934,  p.  7,  s.  10. 

(c)  Harg.  Co.  Litt.  55  b.  note  2.  (e)  Gilb.  L.  of  Ev.  240. 


(1)  So,  if  tenant  for  life  make  a  lease  for  years,  and  die  before  the  expiration  of  the 
term,  the  under  tenant,  or  tenant  for  years,  if  he  has  sown  the  lands,  is  entitled  to  tlie 
crop.  Bevaiis  v.  Briscoe,  4  Harr.  k  Johns.  139.  In  Pennsylvania,  "  tlie  emblements  or 
crops  growing  on  lands  held  by  a  widow,  widower,  or  by  any  other  tenant  for  life,  may 
be  disposed  of  by  will  as  other  personal  cstiite;  also  rents  ai>d  other  periodical  payments 
accruing  to  any  such  tenant  for  life,  or  to  any  other  person  entitled  under  the  laws  of  this 
commonwealth,  regulating  the  descent  and  partition  of  real  estate,  may,  so  far  as  the  same 
have  accrued  on  the  day  of  the  death  of  such  tenant  for  life,  or  other  person,  be  disposed 
of  in  like  mamier. "  Act  of  8lh  April,  1833,  sect.  5,  "relating  to  last  wills  and  testaments." 
(Pamph.  Laws,  249.) 


CHAP.  IV.]  TO  A  DEVISEE.  204 

that  of  the  soil,  and  has  provided  that  such  property  shall  be  at  the 
entire  disposal  of  the  owner,  that  he  may  not  decline  cultivation,  lest 
the  harvest  should  be  reaped  by  a  stranger.  Tvloreover,  the  tenant 
who  has  sovv^n  has  acquired  a  property  in  the  corn  by  his  expense 
and  labour.  It  was  his  own  in  its  original  state,  and  before  it  was 
committed  to  the  earth;  and  his  property  shall  not  be  divested  by 
its  being  sown  on  his  own  ground,  and  the  less,  on  account  of  the 
skill  and  industry  he  has  employed  in  raising  it(/). 

[205]  On  these  principles  the  doctrine  of  emblements  in  respect 
to  the  executor  of  tenant  for  life  is  founded.  Therefore,  if  such  ten- 
ant sow  the  land,  and  die  before  severance,  inasmuch  as  his  estate 
was  uncertain,  and  determined  by  the  act  of  God,  his  executor  shall 
have  the  corn,  and  he  may  take  it  from  off  the  ground  of  the  remain- 
der-man(^).  So  it  has  been  held,  that  at  common  law,  on  the  death 
of  tenant  in  dower,  her  executor  was  entitled  to  the  corn;  and  that 
the  statute  of  Merton(/?),  which  gives  her  the  power  of  devising  it, 
was  passed  only  in  affirmation  of  the  common  law(^). 

If  A.  seised  iti  fee  of  land  sow,  and  then  convey  it  to  B.,  and  die 
before  severance,  the  corn  shall  belong  to  B.,  and  not  to  the  execu- 
tors of  A.;  on  the  principle,  that  every  man's  donation  is  to  be  taken 
most  strongly  against  him;  and  therefore,  it  shall  pass  not  only  the 
land  itself,  but  also  the  chattels  which  are  incidental  to  it(A').  If  A. 
seised  in  fee  of  land  sow,  and  then  convey  it  to  B.  for  life,  with  re- 
mainder to  C.  for  life,  and  B.  die  before  the  corn  is  reaped;  C.  shall 
have  it,  and  not  the  executors  of  B.,  for  B.  had  no  property  in  the 
corn  arising  from  his  own  charge  and  industry,  but  merely  by  A.'s 
donation  of  the  land,  to  which  the  corn  is  appurtenant;  and  by  force 
of  the  same  donation,  by  which  B.  had  a  [206]  right  to  the  corn,  C. 
is. entitled  to  it  after  the  death  of  B.(/). 

If  A.  seised  in  fee  sow  land,  and  give  it  to  B.  for  life,  remainder  to 
C.  for  life,  and  they  both  die  before  severance,  it  shall  go  to  A.;  for 
when  the  force  of  the  donation  is  spent,  the  property  shall  result  to 
the  donor(ni).  If  a  disseissor  of  tenant  for  life  sow  the  land,  and 
such  tenant  die  before  severance,  his  executor,  and  neither  the  dis- 
seisor nor  the  reversioner  shall  have  the  corn(«).  But  trees  shall  not 
be  regarded  in  favour  of  the  executor  of  the  tenant  for  life,  any  more 
than  of  any  other  executor,  as  emblements,  or  as  distinct  from  the 
soil;  for  they  are  parcel  of  the  inheritance,  and  are  planted  for  the 
benefit  of  future  generations(o).  Therefore,  if  such  tenant  plant 
oaks,  or  other  timber  trees,  or  trees  not  timber,  or  hedges,  or  bushes, 
they  shall  not  go  to  his  executor,  but  to  him  in  remainder(jo).     If, 

(/)  Gilb.  L.  of  Ev.  241.  v.  Hawley,  Hob.  132.     Roll.  Abr.  727. 

(g)  Gilb.  L.of  Ev.242.     Harg.  Co.  (m)  Gilb.  L.  of  Ev.248.     Grantham 

Litt.  55  b.    6  Co.  116.    Roll.  Abr.  726.  v.  Hawley,  Hob.  132. 

727.  (w)  2  IJac.  Abr.  64.     Goirlds.  143. 

(A)  20  Hen.  3.  c.  2.  (o)  Gilb.  L.  of  Kv.  242.    3.B1.  Com. 

(/)  Gilb.  L.of  Ev.  245.     Harjr.  Co.  123.     Co.  LiU.  55  b. 

Litt.  55  b.  (/>)  Gilb.  L.  of  Ev.2l9.    Com.  Dijr. 

(A-)  Gilb.  L.  of  Ev.  247.  Bicns,  G.  1.  H.     Harg.  Co.  Litt.  55  b. 

(/)  Gilb.  L.  of  Ev.247.     Grantham  Lat.  270. 


20G  OF  CHATTELS  WHICH  GO  [bOOK  H. 

aswc  htivc  seen,  tlie  tenant  in  fee  make  a  lease  excepting  the  trees,  and 
afterwards  grant  the  trees  to  the  lessee,  they  arc  not  re-annexed  to  the 
inheritance,  but  the  lessee  has  an  absolute  property  in  them,  and 
they  shall  go  to  his  executor(<7). 

But  if  tenant  by  the  curtesy,  or  in  dower,  or  after  possibility 
[207]  of  issue  extinct,  cut  down  trees,  they  shall  not  go  to  the  ex- 
ecutor, but  to  the  remainder-man,  or  reversioner(r).  So  if  A.  ten- 
ant for  life,  with  remainder  to  B.  for  life,  cut  down  trees,  they  shall 
belong  to  him  in  reversion(A'). 

Yet,  if  there  be  a  lessee  for  life,  or  years,  without  impeachment  of 
waste,  he  has  such  an  interest  and  property  in  timber  trees,  that,  in 
case  they  are  cut  down  in  his  lifetime,  or  during  the  term,  they  shall 
belong  to  his  executor(/). 

If  the  trees  are  thrown  down  by  tempest  in  the  lifetime  of  such 
lessee,  or  during  the  term,  they  shall  go  to  his  executor,  and  vest 
equally  as  if  they  had  been  severed  by  the  act  of  the  party(i<).(l) 
But  a  lessee,  though  without  impeachment  of  waste,  has  not  an  ab- 
solute property  in  the  trees;  for  if  they  are  not  cut  down  in  his  life- 
time, or  during  the  term,  his  executor  shall  not  have  them,  but  they 
shall  go  to  the  lessor,  as  annexed  to  the  freehold(?^;).  So,  if  A., 
tenant  for  life,  without  impeachment  of  waste,  with  power  to  cut 
trees,  and  to  make  leases  for  three  lives,  lease  for  three  lives,  ex- 
cepting the  trees,  and  died  before  they  are  cut,  the  trees  are  re-an- 
nexed, and  shall  not  be  severed  by  his  executor(a?). 

[208]  A  tenant  pur  autervie  is  considered  by  the  law,  in  regard 
to  emblements,  in  the  same  light  as  a  tenant  for  his  own  life:  and 
therefore  if  a  man  be  tenant  for  the  life  of  another,  and  the  cestui 
que  vie  die  after  tlie  corn  be  sown,  the  tenant  pur  aider  vie,  and  in 
case  of  his  death,  his  executor  shall  have  the  emblements(3/). 

The  advantages  of  emblements  are  also  extended  to  the  parochial 
clergy  by  the  stat.  28  H.  S.c.  \\{z). 

The  lessees  of  tenants  for  life  at  common  law,  on  the  death  of  the 
lessors,  exercised  the  unreasonable  privileges  of  quitting  the  premises, 
and  paying  rent  to  nobody  for  the  occupation  of  the  land  subsequent 
to  the  last  quarter-day,  orother  day  assigned  for  the  payment  of  rent. 
For  the  representative  of  the  tenant  for  life  could  maintain  no  ac- 
tion for  the  use  and  occupation,  much  less  in  case  there  were  a  lease; 
nor  had  the  remainder-man  such  a  right  because  the  rent  had  not  ac- 
crued due  in  his  time(«).     Nor  could  equity  relieve  by  apportion- 

(y)  Com.  Dio-.  Biens,  H.  4  Co.  G3  b.  (»)  Lat.  163. 

(r)  Com.  Dig.  Biens,  H.    4  Co.  G3.  {y)  2  Bl.  Com.  123. 

11  Co.  82.  (r)  2    Bl.   Com.    123.   vid.  1  Roll. 

(a)  Com.  Dig.  Biens,  II.     A1.81.  Abr.G55. 

(/)  Com.  Dig.  Biens,  H.    Ilarg.  Co.  («)  2  Bl.  Com.  124.      1  Fonbl.  2d 

Liu.  220.     Moore,  327.     11  Co.  82  b.  edit.   381.      Jenner  v.   Morgan,  1  P. 

(u)   11  Co.  84.     1  Roll.  Rep.  183.  Wms.  392.     Paget  v.  Gee,Ambl.  199. 

\w)  1  Roll.  Rep.  182.     Lat.  270. 

(1)  Sec  Shult  V.  Jiarker,  12  Ser-.  Sc  Rawle,  2-2. 


CHAP.  IV.]  TO  THE  REMAINDER  MAN.  208 

ing  it(6).  To  remedy  which  hardsjiip  it  is  now  enacted  by  stat.  11 
Geo.  2.  c.  19,  s.  15,(1)  that  the  executors  of  tenant  for  life,  on  whose 
death  any  lease  deter[209]mined,  shall,  in  an  action  on  the  case,  re- 
cover of  the  lessee  a  rateable  proportion  of  rent  from  the  last  day  of 
payment  to  the  death  of  such  lessor. 

The  provisions  of  this  statute  have,  by  an  equitable  construction, 
been  extended  also  to  the  case  of  tenants  in  tail,  where  leases  are  de- 
termined by  their  deaths(c). 

Equity,  however,  will  not  in  general  apportion  dividends  of 
stock(c^);  but  where  the  money  is  laid  out  in  a  mortgage  till  a  pur- 
chase can  be  made,  the  interest  is  capable  of  being  apportioned(e), 
and  the  distinction  seems  to  turn  on  this  point,  that  the  interest  on  a 
mortgage  is  in  fact  due  from  day  to  day,  and,  therefore,  not  properly 
an  apportionment;  whereas  the  dividends  accruing  from  the  public 
funds  are  made  payable  on  certain  days,  and,  consequently,  cannot  be 
apportioned(y).  On  the  principle  of  this  distinction,  dividends  of 
money  directed  to  be  laid  out  in  land,  and  in  the  mean  time  to  be  in- 
vested in  government  securities,  and  the  interest  and  dividends  to  be 
applied  as  the  rents  and  profits  would  in  case  it  were  laid  out  in  land, 
were  held  not  to  be  apportionable,  [210]  though  the  tenant  for  life 
died  in  the  middle  of  the  half  year(^).  And  the  decision  was  the 
same,  where  the  money  had  been  originally  secured  by  mortgage, 
but  by  order  of  the  court  had  been  transferred  on  government  secu- 
rities(A). 

But  where,  by  a  marriage  settlement,  maintenance  for  daughters 
was  made  payable  half-yearly  at  Lady-day  and  Michaelmas,  and  to 
continue  until  their  portions  should  become  payable,  namely,  at  their 
age  of  eighteen,  or  marriage,  the  portions  and  maintenance  to  be 
raised  out  of  the  rents  and  profits  of  the  estate,  or  by  sale,  mortgage, 
or  lease  of  the  premises,  and  one  of  the  daughters  attained  the  age  of 
eighteen  on  the  16th  of  August,  she  was  decreed  to  have  mainte- 
nance^^ro  rata  from  the  last  Lady-day  to  the  time  of  her  attaining  that 
age.  On  the  ground  that  the  general  intention  of  the  settlement  was 
clear,  that  maintenance  should  be  paid  during  the  whole  interval  of 
time  from  the  commencement  of  the  term  till  the  portion  should  be- 
come due,  that  is  to  say,  half-yearly  on  the  days  above  specified  in 
every  instance  where  it  could  happen,  and  where  that  could  not  be, 
it  was  a  case  notdirectly  provided  for  by  the  setlement  as  to  the  time 

(J)  Jenner  v.  Morgan,  1  P.  Wms.  wick,  2  P.  Wms.  176. 
392.     Hay  v.  Palmer,  2.  P.  Wms.  502.  (/)   1  Fonbl.  2d  edit.  385.     Hay  v. 

sed  vid.  Anon.  Bunb.  294.  Palmer,  2  P. Wms.  501,  and  503,  note  1. 

(c)  Paget  V.  Gee,  Ambl.  198.  Ver-  (^z-)  Com.  Dig.  Chancery  (4.  N.  5.) 
non  V.  Vernon,  2  Bro.  Ch.  Rep.  659.  Sherrard  v.  Sherrard,  3  Atk.502.   Wil- 

(d)  Rashleigh  v.  Master,  3  Bro.  Ch.  son  v.  Harman,  Ambl.  279.  S.C.  2  Ves. 
Rep.  99.  G72.  sed  vid.  3  Vin.  Abr.  18.  pi.  3. 

(e)  Edwards  v.  Countess  of  War-         (/t)  Pearly  v.  Smith,  3  Atk.  260. 


(1)  Tlie  I4lli  and  15lli  sections  of  this  statute  are  in  force  in  Pennsylvania,  3  Biuii.  626. 
Roberts's  Dig.  236.     Sec  Bevans  v.  Uiscoe,  4  llarr.  ik  Jolins.  140. 
18 


210  OF  CHATTELS,  &C.  [bOOK  II. 

of  payment,  but  within  the  general  provision  of  the  maintenance  it- 
self, which  was  expressed  to  continue  till  the  portions  should  become 
payable  (/). 

And  even  dividends  of  money  in  the  funds  directed  to  be  applied 
to  the  maintenance  of  an  infimt,  or  secured  by  the  husband  as  a  sepa- 
rate provision  for  his  wife,  would  perhaps  be  apportioned  in  equity; 
inasmuch  as  it  would  be  difficult  for  them  to  find  credit  for  neces- 
saries, if  the  payment  depended  on  their  living  to  the  end  of  the 
quarter(;t).  And  on  this  principle  an  apportionment  of  an  annuity, 
being  for  the  separate  maintenance  of  a  feme  covert,  has  been  allowed 
at  law(/).  Yet  if  the  quarterly  payments  were  originally  prospec- 
tive payments  by  way  of  maintenance  for  the  ensuing  quarter,  and 
not  payable  at  the  end  of  each  quarter,  in  order  to  discharge  the  ex- 
pences  incurred  in  the  three  preceding  months,  that  circumstance 
might  make  a  difference(wi). 

If  a  lessee  for  life  of  a  manor  seize  an  estray,  and  die  before  the 
year  and  day  are  elapsed,  it  shall  belong  to  his  executor(n). 

[211]  In  regard  to  heir-looms,  I  have  already  stated,  that  the  strict- 
ness of  the  ancient  rule  has  in  later  time  been  relaxed,  as  between  the 
executor  and  the  heir(o).  But  it  has  been  still  more  so,  as  between 
the  executors  of  tenant  for  life,  or  in  tail,  and  the  reversioner(7>>). 

Hence  it  has  been  adjudged,  that  a  fire-engine  set  up  for  the  benefit 
of  a  colliery  by  tenant  for  life,  or  in  tail,  shall  be  considered  as  his 
personal  estate,  and  shall  go  to  his  executor,  and  not  to  the  remain- 
der-man. And  indeed  reasons  of  public  convenience  operate  more 
strongly  as  between  such  parties,  than  even  as  between  heir  and  ex- 
ecutor. A  tenant  for  life  would  be  discouraged  from  making  im- 
provements, if  the  benefits  of  them  might  devolve,  not  on  his  per- 
sonal representatives,  but  on  a  remote  remainder-man, -perhaps  the 
next  day  after  the  improvements  were  effected (^). 

(i)  Hay  V.  Palmer,  2  P.  Wms.  501.  -    (n)  11  Vin.  Abr.  145.     Moore,  11. 

(k)  Vid.  1  Fonbl.  2d  edit.  386,  and         (o)  Supr.  198. 
2  Bl.  Rep.  1017.  (/;)  L.  of  Ni.  Pri.  34. 

(/)  Howell  V.  Hanforth,  2  Bl.  Rep.  (rj)  Lawton  v.  Lawton,  3  Atk.  13. 

1016.  Lord  Dudley  v.  Lord  Warde,  Ambl. 

(m)  Per  De  Grey  C.  J.    2  Bl.  Rep;  198. 
1017. 


CHAP,  v.]  CHATTELS  REAL,  &C.  .    212 


CHAPTER  V. 


OP  THE  CHATTELS  WHICH  GO  TO  THE  WIDOW. 


Sect.  1. 

Of  the.  chattels  real  which  go  to  the  widow:  and  herein  also,  of  such 
chattels  real  as  belong  to  the  surviving  husband. 

In  contemplation  of  law,  a  complete  unity  of  person  subsists  be- 
tween the  husband  and  wife.  As  long  as  the  relation  continues,  they 
are  regarded  as  one  individual.  The  very  existence  of  the  wife  is 
suspended  during  the  coverture,  or  entirely  merged  or  incorporated 
in  that  of  the  husband.  On  this  principle,  whatever  personal  property 
belonged  to  her  when  sole,  is  invested  in  the  husband  by  the  mar- 
riage(«). 

And,  first,  in  regard  to  chattels  real:  Some  are  in  the  nature  of  a 
present  vested  interest,  in  others  she  has  only  an  interest  possible  or 
contingent.  Of  the  first  class  are  leases  for  years,  estates  by  statute- 
merchant,  statute-staple,  or  elegit,  or  any  other  chattel  real  in  her 
possession.  The  second  class  is  distinguished  into  such  [213]  as  are 
called  possibilities,  and  such  as  are  denominated  contingent  interests; 
as,  if  a  term  of  years  be  devised  to  A.  for  life,  and  after  A.'s  death  to 
B.,  B.'s  interest  in  the  residue  of  the  term  operates  by  way  of  ex- 
ecutory devise,  and  is  styled  a  possibility.  But,  if  a  real  estate  be 
limited  to  A.  for  life,  and  after  the  decease  of  A.,  and  if  B.  die  in  A.'s 
lifetime,  to  C.  for  a  term  of  years,  this  operates  not  as  an  executory 
devise,  but  as  a  remainder,  and  therefore  is  considered  as  a  contingent 
interest.(6). 

In  the  chattels  real  of  the  wife  present  and  vested,  an  interest  of 
the  nature  of  the  joint  tenantcy  of  the  husband  and  wife  is  created  by 
the  marriage,  and  is  a  consequence  of  their  legal  unity,  but  subject  to 
alienation  by  the  husband  in  his  lifetime(c);  for  example,  in  case  of 
a  lease  for  years,  he  shall,  during  the  coverture,  receive  the  rents  and 
profits  of  it;  but  if  he  does  nothing  more,  on  his  dying  before  his 
wife,  it  shall  survive  to  her,  and  shall  not  go  to  his  executor;  but  he 
may  during  the  coverture  alienate  it,  either  directly  or  consequen- 
tially, by  such  acts  as  shall  induce  an  alienation.  He  may  sell,  sur- 
render, or  dispose  of  it  in  his  lifetime  at  his  pleasure.     On  his  attain- 

(a)  2  Bl.   Com.   433.     Cora.  Dig.  {h)  Harg.  Co.  Litt.  351,  note  1. 

Baron  &  Feme,  D.  I.  (c)  Plowd.  418.     2  Bl.  Com.  435. 


213  .  OP  CHATTELS  REAL  [bOOK  II. 

der  or  outlawry,  it  shall  be  forfeited  to  tlie  king,  or  it  may  be  taken 
in  execution  for  his  debts(f/). 

He  has  also  during  coverture  a  right  to  assign  such  possible  and 
[214]  contingent  interests  as  have  been  just  mentioned,  unless,  per- 
haps, in  those  cases  where  the  possibility  or  contingency  is  of  such  a 
nature  that  it  cannot  happen  during  liis  life.  As  where  a  lease  is 
granted  to  the  husband  and  wife  for  their  lives,  with  remainder  to 
the  executors  of  the  survivor(c).  Or,  unless,  in  equity  at  least,  the 
future  or  executory  interest  in  a  term,  or  other  chattel,  were  provided 
for  the  wife  with  the  consent  of  the  husband  before  marriage,  for  in 
that  case  his  disposition  of  it  would  be  a  breach  of  his  own  agree- 
ment(y). 

If  the  husband  dispose  not  of  the  chattels  real  of  the  wife  in  his 
lifetime,  and  die  before  her,  they  shall  not  pass  by  bis  will,  nor  shall 
they  go  to  his  executor;  for,  not  having  altered  the  property  in  his 
lifetime,  they  were  never  transferred  from  the  wife;  but  after  his 
death,  she  shall  remain  in  her  ancient  possession(§-).(l) 

But,  if  the  husband  grant  the  term,  on  condition  that  the  grantee 
shall  pay  a  sum  of  money  to  his  executors,  though  the  condition  be 
broken,  and  the  executors  enter,  this  is  a  disposition  of  the  term,  and 
the  wife  is  barred  of  it,  for  the  whole  interest  was  passed  away(/i). 

[215]  If  the  husband  and  wife  be  ejected  of  the  term,  and  the  hus- 
band bring  an  ejectment  in  his  own  name  only,  and  recover,  this  also 
is  an  alteration  of  the  term,  and  vests  it  in  the  husband(^);  for  his 
suing  alone  is  expressive  of  his  intention  to  divest  the  wife  of  her  in- 
terest, and  to  treat  the  term  as  exclusively  his  own. 

If  he  submit  the  term  to  the  arbitration  of  A.',  who  awards  it  to 
B.,  it  will  be  a  disposition  by  the  husband  against  the  wife(/t).  So, 
the  husband  may  make  a  lease  of  the  term  to  commence  after  his 
death,  and  it  shall  be  good,  although  the  wife  survive(/);  but  he  can- 
not charge  such  chattel  real  beyond  the  coverture;  as,  if  he  grant  a 
rent-charge  out  of  the  term,  and  the  wife  survive,  she  shall  avoid  the 
charge,  for  by  her  survivorship  she  is  remitted  to  the  term,  of  which 
the  coverture  did  not  divest  her{m). 

Nor  if  there  be  judgment  against  him,  can  execution  be  sued  out 
after  his  death  against  the  term(n);  nor  shall  it  after  his  death  be  ex- 

(d)  2  Bl.  Com.  434.  Harg.  Co.  (i)  1  Roll.  Rep.  359.  Harg.  Co. 
Liu.  46  b.    Plowd.  263.                             Litt.  46b.  sed  vid.  note  6.  ibid. 

(e)  10  Co.  51.     Harg.  Co.  Litt.  4Gb.  (k)  Dyer,  183. 

Com.  Dig.  Baron  and  Feme,  E.  2.  (/)  Grute  v.  Locroft,  Cro.  Eliz,  287. 

(/)   Harg.  Co.  Litt.  351,  note  1.  Poph.  5. 

Ig)  2B1.  Com.  434.     Plowd.  418.  (w)  Harg.  Co.  Litt.  351.     Plowd. 

(A)  Com.  Dig.  Baron  and  Feme,  E.  418. 

2.    Harg.  Co.   Litt.  46  b.  («)  1  Roll.  344.  346. 


(1)  A  conveyance  by  a  husbanil  will  pass  the  entire  interest  of  his  wife,  entitled  to  a 
life  estate  in  lands,  in  the  event  of  his  surviving;  but  if  she  survives  him,  it  passes  ordy  an 
interest  during  liis  life.     Evam  v.  Kingshury,  2  Rand.  Rep.  1'20. 


CHAP,  v.]  WHICH  GO  TO  THE  WIDOW.  215 

tended  on  a  statute  or  recognizance  acknowledged  byhim(o);  nor,  as 
it  seems,  for  a  debt  due  from  him  to  the  king(jy);  Nor  [216]  has  his 
disposition  of  part  of  the  term  the  effect  of  a  disposition  of  the  whole. 
As,  if  A.  be  possessed  of  a  term  for  forty  years  in  right  of  his  wife, 
and  grant  a  lease  for  twenty  years,  reserving  a  rent,  and  die;  although 
the  executors  of  the  husband  shall  have  the  rent,  for  it  was  not  inci- 
dent to  the  reversion,  inasmuch  as  the  wife  was  not  party  to  the  lease, 
yet  she  shall  have  the  residue  of  the  ierm{q).  If  the  term  be  ex- 
tended, the  wife  shall  have  the  term  after  the  extent  is  satisfied(r). 
If  the  husband  and  wife  mortgage  the  term,  and  the  husband  pay  the 
money,  and  enter  and  die,  the  wife  shall  have  it{s).  If  the  wife  and 
her  husband  were  joint  tenants  of  a  rent-charge  for  their  lives,  the 
wife,  in  case  she  survive,  shall  have  the  arrears  incurred  during  the 
coverture(/).  If  the  husband  and  wife  make  a  lease  reserving  rent, 
and  she  assent  after  the  death  of  the  husband,  she  shall  have  the  ar- 
rears incurred  inhis  lifeT;ime(t^).  Or  if  the  husband  be  entitled  to  an 
advowson  in  right  of  his  wife,  and  after  an  avoidance,  but  before  pre- 
sentation die,  his  wife,  and  not  his  executors,  shall  present(?^). 

In  case  the  wife  die  before  the  husband,  all  the  chattels  real  of  the 
wife,  in  which  there  exists  a  present,  actual,  and  vested  interest,  be- 
come absolutely  and  entirely  his  own  by  survivorship(.r),  [217]  and 
that  without  taking  out  administration  to  her(i/).  To  entitle  himself 
to  her  chattels  real,  which  are  not  so  vested,  he  must  make  himself 
her  representative  by  becoming  her  administrator.  It  seems  formerly 
to  have  been  doubted,  whether,  if,  having  survived  his  wife,  he  died 
during  the  suspense  of  the  contingency  on  which  any  part  of  his 
wife's  property  depended,  his  representative,  or  his  wife's  next  of 
kin,  had  a  right  to  the  benefit  of  it;  .but  by  a  series  of  authorities  it 
is  now  settled,  that  the  husband's  representative  is  beneficially  en- 
titled as  well  to  this  species  of  the  wife's  property(z),  as  to  any  other, 
which  devolved  to  him  either  as  survivor,  or  by  virtue  of  the  grant 
of  administration.  And  although  the  husband's  right  to  such  grant 
be  personal  ©nly,  and  not  transmissible,  and,  as  I  have  before  stated(«), 
the  spiritual  court  be  in  such  case  obliged  by  the  stat.  31  E.  3.  to 
commit  administration  to  the  next  of  kin  of  the  wife,  yet  such  gran- 
tee is  regarded  in  equity  as  a  mere  trustee  for  the  representative  of  the 
husband(A). 

If  the  tenant  in  dower  grant  a  lease  for  years,  and  marry,  and  die, 
the  husband  shall  have  the  rent  in  arrcar  in  his  wife's  lifetime(c). 

(o)  1  Roll.  Abr.  346.  (x)  Co.  Litt.  300.  Com.  Dig.  Baron 

(p)  2  Roll.  Abr.  157.     1  Roll.  Abr.  and  Feme,  E.  2. 
346.  {y)  Com.  Di^.  Baron  and  Feme,E. 

(o)  Harcr.  Co.  Litt.  46  b.  2  Roll.  Abr.  345. 

(r)   I  Roll.  Abr.  344.  (z)  Hartr.  Co.  Litt.  351,  note  1. 

(«)  Ibid.  («)   Supr.  116. 

It)  1  Roll.  Abr.  350.     Dembyn  v.  (b)  Sed.  vid.  Harg.  Co.  LiU.  351, 

Brown,  Moore,  887.  .  note  1.     1  Harg.  Law.  Tr.     475,  in 

(u)  Ibid.  350.  note. 

(lo)  Com.  Dig.  Baron  and  Feme,  E.  (c)  Moore,  7. 

3.     Co.  Lilt.  351. 


217  OF  CHATTELS  PERSONAL    •  [bOOK  II. 

And  by  the  stal.  32  Hen.  8.  c.  37,  arrears  of  rent  clue  as  well  before 
as  after  coverture  to  the  wife  seised  in  fee,  in  tail,  or  for  life,  are  on 
her  death  given  to  the  husband.     If  the  husband  [218]  be  entitled 
to  an  advowson  in  right  of  his  wife,  and  he  survive,  he  shall  have 
an  avoidance  which  happened  during  the  coverture(rf).     If  a  wife 
were  possessed  at  her  marriage  of  a  trust  term  to  her  separate  use, 
the  surviving  huslnmd  shall  be  entitled  to  it,  except  in  special  cases(e); 
as  if,  before  "marriage,  it  were  settled  on  her  with  the  assent  of  the 
husband (/).     If  the  husband  and  wife  mortgage  a  term  of  the  wife, 
and  the  husband  survive,  he  shall  have  the  equity  of  redemi)tion(^,^'-). 
If  the  husband  sow  the  land  of-  which  he  is  seised  in  right  of  his 
wife,  and  she  die,  he  shall  have  the  profits(/i).     Or  if  he  die  before 
the  wifeiind  before  severance,  his  executors  shall  be  entitled  to  them; 
but  it  seems,   that  in  the  event  of. his  so  dying,   if  the  lands  were 
sown  before  the  marriage,  the  wife  shall  have  the  profits,  and  not  the 
executors  of  the  husband:  for  the  corn  comifiitted  to  the  ground  be- 
longs to  the  freehold,  and  is  not  transferred   to  the  husband;  and, 
therefore,  as  it  was  undisposed  of  in  his  lifetime,  it  devolves  to  the 
wife(z).     So,  if  A.  seised  in  fee  sow  copyhold  lands  and  surrender 
them  to  the  use  of  his  wife,  and  die  before  severance,  it  seems  that 
the  wife  shall  have  the  corn,  and  not  the  executors  [219]  of  the  hus- 
band; for  this  is  a  disposition  of  the  corn  as  appurtenant  to  the  land, 
and  since  the  husband  disposed  of  it  during  his  life,  it  cannot  belong 
to  his  executors(A').     But,  if  the  husband  and  wife  be  joint  tenants, 
and  the  husband  sow  the  land  and  die,  it  seems  the  corn  shall  go  to 
the  executor  of  tiie  husband,  for  the  land  is  not  cultivated  by  a  joint 
stock,  the  corn  is  altogether  the  property  of  the  husband,  and  it  shall 
not  be  lost  by  being  committed  to  their  joint  possession,  any  more 
than  if  it  had  been  sown  in  the  land  of  the  wife  only(/). 


Sect.  II.  • 

Of  the  chattels  personal  which  go  to  the  widow:  and  herein,  of  such 
personal  chattels  of  the  wife  as  go  to  the  surviving  husband. 

Chattels  personal,  or  chases  in  action,  as  debts  on  bond,  simple 
contracts,  and  the  like,  do  not  vest  in  the  husband,  until  he  receives 

(d)  Com.  Dior.  Baron  and  Feme,  E.  {g)  Young  v.  Radford,  Hob.  3. 

3.     Harg.  Co.  Litt.351.  (A)  Gilb.  L.  ofEv.  245.     Harg.  Co. 

(e)  Com.  Dig.  Baron  and  Feme,  E.      Litt.  55  b. 

2:  1  Fonbl.  98.     Sir  Edward  Turner's  («)  Gilb.  L.  of  Ev,  246.     Harg.  Co, 

case,  1  Vern.  7.     Pitt.  v.  Hunt,  ib.  18.  Litt.  55  b.  note  5.     Roll.  Abr.  727. 

Tudor  V.  Samayne,  2  Vern.  270.  Jew-  {k)  Roll.  Abr.  727. 

son  V.  Moulson,  2  Atk.  421.     Sed  vid.  (/)  Gilb  L.  of  Ev.  245.     Roll.  Abr. 

Countess  Strathmore  V.  Bowes,  2  Bro.  727.     8ed  vid.  Harg.  Co.  Litt,  55  b. 

Chan.  Rep.  345.  et  note  7.    Vin.  Abr.  tit.  Emblements, 

(/)  Com.  Dig.  Chancery,  2  M.  9.  pi.  16.  Com.  Dig.  Biens,  G.  2.    L.  of 

Harg.  Co.  Litt.  351,  note  1.  Test.  380. 


CHAP,  v.]  WHICH  GO  TO  THE  WIDOW.  219 

or  recovers  them  at  law.  When  he  has  thus  reduced  them  into  pos- 
session, they  become  absolutely  his  own,  and  at  his  death,  [220]  shall 
go  to  his  representatives,  or  as  he  shall  appoint  by  his  will,  and 
shall  not  revest  in  his  wife(a).(l) 

In  respect  to  such  choscs  in  action  as  vested  in  the  wife  before  her 
marriage,  the  husband  must  sue  jointly  with  her  to  recover  them(6), (2) 
as  to  such  of  the  wife's  choses  inaction,  as  accrued  subsequent  to  the 
coverture,  he  may  sue  either  in  their  joint  names,  or  alone,  at  his 
pleasure(c).(3) 

(a)  2  Bl.  Com.  434,  Harg.  Co.  Litt.  (c)  Blackborn  v.  Greaves,  2  Lev. 

351.  107.     Howell  v.  Maine,  3  Lev.  403. 

{b)  Com.  Dig.  Baron  and  Feme,  V.      Al.  36.     Cappin  v. ,  2  P.  Wms. 

1  Roll.  Abr,  347.     Ow.  82.      Wood-  497.     Vid.  Mitchinson  v.  Hewson,  7 

ward  v.  Parry,  Cro.  Eliz.  537.     Gar-  Term  Rep.  349. 
forth  V.  Bradley,  2  Ves.  676.  1  Sid.  25. 


(1)  Lodge  V.  Hamilton,  2  Serg.  &  Rawle,  493.  And  the  same  rule  prevails  where  the 
husband  and  wife  jointly  during  the  coverture  become  entitled  to  a  chose  in  action.  Ibid. 
But  in  Wliitaker  v.  JVhitaker,  6  Johns.  Rep.  112,  it  was  decided,  that  a  husband  who  sur- 
vives his  wife  is  entitled  to  all  her  choses  m  action,  whether  reduced  into  his  possession  in 
her  lifetime  or  not.  See  also  5  Johns.  Cha.  Rep.  206.  'See,  however.  Roper's  Law  of 
Husb.  and  Wife,  vol.  i.  p.  202.  Udallv.  Kenneij,  3  Cow.  Rep.  590..  Bohn  v.  Headley, 
7  Harr.  &;  Johns.  257.  Hynes  \.  Lewis,  1  Tayl.  Rep.  44.  5  Day's  Rep.  294.  As  to  re- 
versionary  interests  of  the  wife  in  personal  property,  she  is  entitled  by  survivorship 
to  them  against  both  the  general  and  particular  assignee  of  the  husband,  if  he  dies 
without  having  reduced  them  to  possession.  Hornsby  v.  Lee,  2  Madd.  Rep.  16.  Pur- 
de~M  v.  Jackson,  1  Russ.  Rep.  1.  In  the  last  case,  which  was  most  elaborately  argued, and 
all  the  cases  referred  to,  the  Master  of  the  Rolls  (Sir  1'.  Plumer)  asked  the  counsel  who 
argued  in  support  of  the  claim  of  the  assignee  of  the  husband  (Mr.  Sudgen  and  Mr.  Shad- 
well)  "if  there  was  any  case  in  which  the  husband  having  assigned  the  wife's  present 
chose  in  action,  and  having  died  before  the  assignee  obtained  possession  of  it,  the  assignee 
prevailed  over  the  surviving  wife;"  to  which  they  replied,  "that  they  believed  that  such 
a  case  had  not  occurred."  He  further  observed  in  giving  judgment,  "  that  the  act  of  the 
husband  cannot  take  away  or  abridge  the  wife's  right,  unless  he  reduces  the  chose  in  ac- 
tion into  possession — it  is  in  vain  for  him  to  stipulate,  that,  though  he  is  unable  or  unwill- 
ing to  reduce  it  into  possession,  and  (hough  after  his  death  it  should  continue  to  be  a 
chose  in  action,  his  surviving  wife  shall  not  be  entitled  to  recover  it  for  her  own  benefit." 
As  to  present  interests  in  personal  i)roperty,  the  husband's  assignment  boyia  fide,  for  a 
valuable  consideration,  divests  in  equity  the  title  of  the  wife.  Cassell  v.  Carroll,  11 
Wheat.  Rep.  134.  See  also  jyVCallop  v.  Blount,  Johnst(m\.  Pasteur,  Cam.  &  Norw.  90, 
404.  Byrne's  Adin.  v.  Stewart,  Ex  parte  Elmes,  3  Dcsaus.  Rep.  135,155.  When  the 
husband  obtains  possession  of  the  wife's  personal  property,  he  is  entitled  absolutely  to  it; 
and, in  the  absence  of  any  contract  or  assumption  on  hispart,  is  not  bound  to  pay  lier  debts, 
contracted  before  marriage,  with  it,  if  the  wife  die  before  payment  of  tliem.  Beach  v. 
Lee,  2  IJall.  Rep.  257.     Buckner  v.  Smith,  4  Desaus.  Rep.  371. 

(2)  Crazier  v.  Gano,  1  Bibb's  Rep.  257.  And  where  a  bond  and  warrant  of  attorney 
are  given  to  a  feme  dum  .lola,  who  afterwards  marries,  the  court  upon  affidavit  of  tiie 
facts,  will  <lirect  judgment  to  be  entered  in  favour  of  the  baron  and  feme.  Slieble  v. 
Cummin,  1  P.  A.  Browne's  Rep.  253. 

(3)  7'/te  State  v.  Krebs,  0  Harr.  k  Johns.  31.  Banks  v.  Marksbcrry,  3  Litt.  Re[).  281. 
2  Conn.  Rep.  560.     Jlrmstrong  v.  Simonton,  2  Tayl.  Rep.  260. 


220  OF  CHATTELS  PERSONAL  [bOOK  II. 

If  he  join  lidr  in  action,  and  recover  judgment,  and  die,  the  judg- 
nrent  will  survive  to  her  on  the  i)rinciplc,  that  although  his  bringing 
the  action  in  his  own  name  alone  be  a  disagreement  to  the  wife's  in- 
terest, and  indicate  his  intention  that  it  shall  not  survive  to  her:  yet 
if  he  bring  an  action  in  the  joint  names  of  himself  and  his  wife,  the 
judgment  is,  that  they  both  shall  recover,  and  therefore  such  action 
does  not  alter  the  ])roperty,  nor  imply  an  intention  on  his  part  to  do 
so,  and,  consequently,  the  surviving  wife,  and  not  the  representative 
of  the  husband,  is  entitled  to  a  scire  facias  on  the  judgment(^/).(l) 

Indeed  it  has  been  asserted  by  a  great  authority,  that,  even  in  the 
case  of  the  husband's  suing  alone  for  the  wife's  debt  and  his  [221] 
dying  before  execution,  his  wife,  and  not  his  executors,  shall  be  thus 
entitled(e).(2) 

Siich  chattels  shall,  a  fortiori,  survive  to  her,  if  the  husband  die 
before  he  has  proceeded  to  reduce  them  into  possession(/").  Hence 
a  portion  due  to  an  orphan  in  the  hands  of  the  chamberlain  of  Lon- 
don, unless  it  be  recovered,  or  received  by  the  husband,  shall,  on  his 
death,  go  to  his  wife,  and  not  to  his  executor,  for  it  is  clearly  a  chose 
in  action (,i,'-).( 3)  So  before  the  stat.  5  Geo.  2.  c.  30,  s.  26,  where  the 
de-btor  to  the  wife  became  bankrupt  and  the  husband  claimed  the  debt, 
and  paidtliecontribulionmoney,  anddiedbeforeanydividend,his  wife, 
and  not  his  executor,  was  held  entitled  to  the  debt,  for  by  such  pay- 
ment the  property  was  not  altered(A).  So  if  an  estray  come  into  the 
wife's  franchise,  in  case  the  husband  die  without  seizing  it,  his  wife 
and  not  his  executors,  are  entitled  to  the  seizure.  In  all  these  cases 
the  husband's  right  is  determined  with  the  coverture(2). 

But,  if  the  husband  grant  a  letter  of  attorney  to  A.  to  receive  a 
debt  or  legacy  due  to  the  wife,  and  A.  receive  it,  but  before  he 

(d)  Com.  Dig,  Baron  and  Feme,  V.  Pheasant  v.  Pheasant, ^2  Ventr.  341. 
Harg.  Co.  Litt.  351,  note  1.  S.  C.     Ca.  Ch.  182. 

(e)  Bond  v.  Simmons,  3  Atk.  21.  (A)  Com.  Dig.  Baron  &Feme,  E.3. 
(/)  2   Bl.  Com.  434.     Harg.  Co.      Anon.  2  Vern.  707. 

Litt.  351.  («■)  2  Bl.  Com.  434.    Harg.  Co.  Litt. 

(g-)  Com.  Dig.  Baron  &  Feme,  E.  3.      351b. 


( 1 )  And  a  note  and  mortgage  made  to  husband  and  wife,  shall  go  to  the  wife,  if  she  sur- 
vive her  liusband,  and  not  to  the  executor  of  the  husband.  Draper  v.  Jackson,  16  Mass. 
Rep.  480.  So  also  a  recognizance  taken  in  tlie  Orphans' Court  for  the  wife's  share  of 
laud,iu  the  name  of  the  husband  and  wife,  not  reduced  into  possession,  nor  disposed  of  by 
the  husband,  sui-vives,  on  his  death,  to  tlie  wife.  Lodge  v.  Hamilton,  2  Serg.  &  Rawle, 
491. 

(2)  See  JIammick  v.  Bronson,  5  Day's  Rep.  294  to  297. 

(3)  A  share  of  personal  estate  accruing,  in  right  of  the  wife,  during  coverture,  vests, 
even  before  distribution  made,  in  the  husband,  absolutely,  and  does  not  in  the  event  of  his 
prior  death  survive  to  her.  Grisivold  v.  Peiiniman  et  ux.  2  Conn.  Rep.  564.  And  a 
husband  may  forfeit,  by  his  conduct  in  abandoning  and  ill-treating  his  wife,  and  marry- 
ing another  woman,  and  continuing  to  live  with  her  for  twenty'  years,  all  just  claim  to  the 
wife's  distributive  share  of  personal  estate  inherited  by  her;  and  a  court  of  equity  will  lay 
hold  of  tlie  property,  and  provide  for  her  maintenance  out  of  it.  jDiimond  v.  J\Iagee,  4 
Joluis.  Cha.  Rep.  318. 


CHAP,  v.]  WHICH  GO  TO  THE  WIDOW.  221 

pays  it  over  the  husband  die,  it  shall  be  considered  as,  having 
[222]  vested  in  his  possession,  and  shall  go  to  his  executors(Ar).(l) 
Such  are  the  principles  of  law  on  this  subject;  but  in  equity  it  is 
held,  that  a  settlement  before  marriage,  if  made  in  consideration  of 
the  wife's  fortune,  entitles  the  representative  of  the  husband  dying 
in  her  lifetime  to  her  choses  in  action.  But  it  has  been  asserted, 
that  if  it  be  not  made  in  consideration  of  her  fortune,  the  surviving 
wife  will  be  entitled  to  the  things  in  action,  the  property  of  which 
has  not  been  reduced  by  the  husband.  So,  if  it  be  in  consideration 
of  part  of  her  fortune,  such  things  in  action  as  are  not  comprised  in 
that  part,  it  is  said,  survive  to  the  wife.  And  in  a  case  where  a 
settlement  was  made  to  provide  for  the  wife,  without  mentioning  her 
personal  estate,  the  Lord  Keeper  decreed,  that  such  estate  should 
belong  to  the  representatives  of  the  husband,  and  held,  that  in  all 
cases  where  there  is  a  settlement  equivalent  to  the  wife's  portion,  it 
shall  be  intended  that  the  husband  shall  have  the  portion,  although 
there  be  no  agreement  for  that  purpose(/).  But  the  presumption  of 
an  agreement  from  the  mere  fact  of  a  settlement  being  made  by  the 
husband,  is  peculiar  to  the  case  last  cited,  and  has  been  disavowed 
by  the  court  in  several  other  cases(7r<.). 

Equity  also  considers  money  due  on  mortgage  as  a  chose  in  ac- 
tion; and  it  seems  to  have  been  formerly  understood,  that  since 
the  husband  could  not  dispose  of  lands  mortgaged  to  the  wife  in 
fee  without  her,  and  the  estate  remained  in  her,  she  or  her  repre- 
sentatives were  entitled  to  the  money,  as  incident  to  it;  but  that 
in  regard  to  a  mortgage  debt,  secured  by  a  term  of  years,  as  the 
[223]  husband  had  an  absolute  power  over  the  term,  there  was  no 
obstacle  to  the  debt's  vesting  in  his  representatives;  but  this  dis- 
tinction is  exploded,  and  it  is  now  held,  that  although  in  case  of  a 
mortgage  in  fee,  the  legal  fee  of  the  lands  in  mortgage  continue  in 
the  wife,  she  is  but  a  trustee,  and  the  trust  of  the  mortgage  follows 
the  property  of  the  debt(;i). 

If  the  husband  and  wife  have  a  decree  in  equity,  in  right  of  the 

(k)  Roll.   Abr.    342.     Huntley    v.  (m)  Lister  v.  Lister,  2  Vern.  68. 

.  Griffiths,  Moore,  452.  Cleland   v.    Cleland,   Pre.    Cha.   63. 

(/)  Harg.  Co.  Litt.  351,  note  I.     3  See  also  Salwey  v.  Salwey,  Amb.  692. 

P.  Wms.  200,  note  D.     Prec.  Chan,  and  Druce  v.  Denison,  6  Ves.  jun.  385. 

Cleland   v.    Cleland,    63.     Packer  v.  (??.)    Harg.    Co.   Litt.    351,  note  I. 

VVyndham,  412.     Blois  v.  Countess  of  Bosvil  v.  Brander,    1   P.  Wms.  458. 

Hereford,   2   Vern.   502.      Adams  v.  Bates  v.  Dandy,  2  Atk.  207. 
Cole,  Ca.  Temp.  Talb.  168. 


(1)  Schuyler  v.  I/oyle,  5  Johns.  Clia.  Rep.  196.  But  if  the  liusband  .ind  wife  make  a 
joint  power  to  receive  the  debt  or  legacy  due  to  the  wife,  and  tlie  attorney  obtained  pos- 
session of  the  property,  but  l)efore  he  had  paid  over  the  entire  siiare  the  liusbaiid  died, 
tlie  wife  is  entitled,  in  her  own  riglit,  as  survivor,  to  that  portion  not  actually  paid  over  to 
the  husband.  Dumond  v.  Mugcc,  4  Johns.  Cha.  Itep.  318. 
19 


'223  OF  CHATTELS  PERSONAL  [bOOK  II. 

wife,  and  the  husband  die,  the  benefit  of  the  decree  belongs  to  the 
wife,  and  not  to  the  executor  of  the  husband(o).(l) 

But  if  the  wife's  fortune  be  in  the  Court  of  Chancery,  on  the  hus- 
band's death  his  representatives  shall  be  entitled  to  it,  subject  to  the 
same  equity  as  before,  in  favour  of  the  wife.  In  case  of  her  death 
it  shall  become  the  absolute  property  of  the  husband;  and  it  has  been 
held,  even  where  the  court  detained  the  fund  in  order  to  enforce  a 
provision  for  the  wife,  and  made  a  decree  for  that  purpose,  and  she 
survived  her  husband,  yet,  that  on  her  deatli,  his  representatives 
were  entitled  to  it,  inasmuch  as  it  had  absolutely  vested  in  him  by 
law.  In  these  cases,  it  seems  to  make  no  difl[er[224]ence  whether 
there  be  any  issue  of  the  marriage  or  not(^). 

In  case  the  husband  survive  the  wife,  her  chattels  real,  as  we  have 
seen,  shall  become  his  absolute  property  (<7).  But  her  c/ioses  in  ac- 
tion shall  go  to  her  representatives,  excepting  the  arrears  of  rent  due 
to  her,  which,  as  I  have  before  stated,  on  her  death  are,  by  stat.  32 
Hen.  8.  c.  37,  given  to  the  husband.  The  ground  of  the  distinction 
is  this:  The  husband  is  in  absolute  possession  of  the  chattel  real  during 
coverture,  by  a  kind  of  joint-tenancy  with  his  wife,  and  therefore 
the  law  will  not  wrest  it  from  him,  though  if  he  had  died  first  it 
would  have  survived  to  the  wife,  unless  he  had  altered  the  possess- 
ion in  his  lifetime:  but  a  chose  in  action  was  never  in  his  possession: 
He  could  acquire  it  only  by  suing  in  his  wife's  right,  and  as  after 
her  death  he  cannot  as  husband  bring  an  action  in  her  right,  because 
they  are  no  longer  one  and  the  same  person  in  law,  therefore  he  can 
never  as  such  recover  the  possession.  But,  in  the  capacity  of  her 
administrator,  he  may  recover  such  things  in  action  as  became  due 
to  her  before  or  during  the  coverture(r). 

In  chattels  personal,  or  choses  in  possession  of  the  wife  in  her 
own  right,  as  ready  money,  jewels,  household  goods,  and  the  like, 
the  husband  hath  an  immediate,  absolute,  and  actual  property  de- 
volved to  him  by  the  marriage,  which  never  can  revest  in  the  wife 
or  her  representatives(.s').(2) 

[225]  Such  chattels  also  as  are  given  to  the  wife  after  the  mar- 
riage shall  belong  to  the  husband,  and  he  shall  be  entitled  to  them, 
although  they  had  not  come  to  his  possession  at  the  time  of  her 

(o)  Harg.    Co.  Litt.   351,   note    1.  v.  Thornton,  Ambl.  503. 

Nanny  v.   Martin,    1    Chan.  Ca.  27.  ((/)  Supr.  216. 

Carr  v.  Taylor,  10  Ves.  jun.  579,  580.  \r)  2  Bl.  Com.  435. 

(j9)    1    Fonbl.   8.   89.      Packer  v.  (s)  2  Bl.  Com.  435.   3  Bac.  Abr.  65. 

Wyndham,  Prec.  Chan.  418.     Perkins  Dr.  &  Stud.  Dial.  1  cap.  7. 


(1)  Schuyler  v.  Hoyle,  5  Johns.  Cha.  Rep.  210.  So  if  the  husband  die  pending  a  suit 
in  equity  in  the  name  of  the  liusband  and  wife  for  the  recovery  of  personal  property  in 
right  of  the  wife,  the  right  survives  to  her,  and  on  her  death  the  suit  should  not  be  revived 
in  the  name  oi Ids  administrators.     Vaughan  et  ux.  v.  Wilson,  4  Hen.  &  Munf.  452. 

(2)  Reeve's  Dom.  Relations,  1. 


CHAP,  v.]         WHICH  GO  TO  THE  WIDOW.  .  225 

death(6').(l)  Thus  it  hath  been  held,  that  if  a  legacy  be  left  to  a 
wife,  to  be  paid  twelve  months  after  the  testator's  death,  and  the 
wife  die  within  that  period,  her  husband  is  entitled  to  it,  for  an  im- 
mediate interest  was  vested  in  him,  and  subject  to  his  release  before 
the  time  of  payment(^).(2) 

Such  are  the  legal  consequences  of  the  unity  of  husband  and  wife; 
but  courts  of  equity,  although  they  recognize  the  rule  of  law  which 
considers  the  husband  and  wife  as  one  person,  yet,  in  some  cases, 
will  treat  their  interests  as  distinct(?/).  If  property  be  given  gene- 
rally to  the  wife,  it  shall  vest  in  the  husband,  both  in  law  and  equity; 
nor  shall  it  be  supposed  to  be  for  her  separate  use,  though  she  live 
apart  from  the  husband(^»).(3)  But  where  it  is  given  to  the  separate 
use  of  the  wife,  she  shall  be  entitled  to  it  in  equity  independently 
of  her  husband(?^?).  And  though  it  were  always  clear  that  she  was 
thus  entitled  to  such  property,  if  trustees  were  interposed,  yet  it 
was  formerly  a  doubt,  whether  she  could  take  it  where  none  were 
appointed(.T).  It  is  now  however  settled  in  the  affirmative.  It  has 
been  held,  that  where  A,  devised  lands  in  fee  to  his  daughter,  a 
feme  covert,  for  her  separate  use,  without  naming  trustees,  it  should 
be  a  trust  in  the  husband,  for  it  makes  no  difference  whether  the 
trust  be  created  by  the  act  of  the  party,  or  by  the  act  of  the  law(y). 
So,  where  a  bond  was  bequeathed  to  a  wife  for  her  sole  and  separate 
use,  and  no  trustees  nominated,  it  was  held  to  be  completely  vested 
in  herin  equity(z).(4) 

And  equity  will  not  only  raise  a  trust  where  the  gift  is  expressly 
for  the  separate  use  of  the  wife,  but  will  infer  it  from  words  not 
technical,  or  from  the  circumstances  under  which  the  gift  is  made, 
or,  as  it  seems,  merely  from  the  nature  of  the  subject:  Thus,  where 
an  estate  was  given  to  a  husband,  for  the  livelihood  of  his  wife,  he 
was  considered  as  a  trustee  for  her  separate  use(«).  So  where  dia- 
monds were  given  to  the  wife  by  the  husband's  father,  on  her  mar- 
riage, it  was  held,  that  they  were  a  gift  to  lier  separate  use,  and  that 
she  was  in  equity  entitled  to  them  in  her  own  right(6).     And,  where 

(«)  Com.  Dig.  Baron  &  Feme.  E.  3.  (x)  1  Fonbl.  98.    Harvey  v.  Harvey. 

Miles's  Case,  1  Mod.  179.    1  Sid.  337.  1  P.  Wms.  126.    Burton  v.  Pierepoint, 

(0  Com.  Dig.  Baron  &  Feme,  E.  3.  2  P.  Wms.  79. 

2  KoU.  Rep.  131.  (y)  Bennett  v.  Davis,  2  P.  Wms. 

(u)   1  Fonbl.  87.  Brooks  V.  Brooks,  316.     Darley  v.  Darley,  3  Atk.  399. 

Prec.  Chan.  24.     Moore  v.  Moore,   1  Com.  Dig.  Baron  &  Feme,  D.  1. 

Atk.  272.  (c)  Rolfe  v.  Buddor,  1  Bunb.  187. 

(«)  Palmer  v.  Trevor,  1  Vern.  261.  {r/)  Darley  v,  Darley,  3  Atk.  399. 

Harvey  v.  Harvey,  2  Vern.  659.  (/j)  Graham  v.  Londonderry,  3  Atk. 

(w)  Griffith  V.  Hood,  2  Ves.  452.  393. 


(1)  Stvann  v.  Gunge,  1  Hayw.  3. 

(2)  Jieeve''s  Dom.  Relations,  60.     Dade  v.  ^llexander,  1  W'asli.  Rep.  30. 

(3)  Fitch  V.  Jlyre,  2  Conn.   Rep.   143.     Jtarrrltx.  Barrett,  A  D(;saus.  Cha.  Rep.  452. 
Torbert  v.  Tioinincr,  1  Yeates,  432. 

(4)  Jaminon  v.  Brady,  0  Serg.  &c  Rawlf ,  406. 


226  OF  CHATTELS  RKAL,  &C.  [bOOK  II. 

a  foreigner  made  the  wife  a  present  of  trinkets,  though  [227]  not 
expressly  for  her  separate  use;  Lord  llarwieke,  C.  seemed  to  think 
they  should  he  so  construed (c). 

Gifts,  likewise,  from  the  hushand  to  tlic  wife,  although  the  law 
does  not  allow  the  j)roperty  to  pass,  shall,  without  prejudice  to  cre- 
ditors, be  supported  in  equity,  whether  trustees  be  interposed,  or 
not(f/).  Thus,  where  the  husband  transferred  one  thousand  pounds 
South  Sea  annuities  in  the  name  of  his  wife,  she  was  held  entitled 
to  them,  as  given  to  her  separate  use(e). 

So  trinkets  given  to  the  wife  by  the  husband  in  his  lifetime,  were 
decided  to  be  her  scj)aratc  estate(/).  And  where  a  husband  al- 
lowed his  wife  to  make  profit  of  all  butter,  poultry,  fruit,  and  other 
trivial  matters  arising  from  the  farm,  beyond  what  was  used  in  the 
family,  out  of  which  she  saved  one  hundred  pounds,  which  the  hus- 
band borrowed,  on  his  death  the  Court  of  Chancery  allowed  the 
agreement,  as  a  reasonable  encouragement  of  the  wife's  frugality, 
and  admitted  her  to  corne  in  as  a  creditor  for  that  sum(;§-)(l).  So 
where  the  husband  agreed  that  the  wife  should  take  two  guineas  of 
every  tenant  beyond  the  fine  paid  to  the  husband  for  the  renewal 
of  a  lease,  this  was  allowed  to  be  the  wife's  separate  money  (A). 
But,  in  all  such  cases,  to  entitled  the  wife  to  such  an  allowance,  there 
must  be  a  sufficient  fund  for  the  payment  of  debts(/).  Nor  will  the 
court,  in  any  case,  permit  a  gift  of  the  [328]  whole  of  the  husband's 
estate,  while  he  is  living,  for  that  would  not  be  in  the  nature  of  a 
mere  provision,  which  is  all  she  is  entitled  to{k). 

But,  if  the  husband  and  wife  live  together,  and  he  provide  her 
with  clothes  and  other  necessaries,  and  she  demand  not  but  suffer 
him  to  receive  the  rents  and  profits  of  her  separate  estate,  or  her 
pin-money,  or  if  sheaccept  payments  short  of  what  she  is  entitled 
to  on  his  death,  neither  she  nor  her  representatives  shall  have  an 
account  of  such  separate  estate  farther  back  than  a  year,  for  she 
shall  be  presumed  to  have  waived  her  right  to  the  antecedent  pro- 
duce(/).(2)     Yet,  under  particular  circumstances,  it  may  be  other- 

(c)  1  Fonbl.  98.     Graham  v.  Lon-  (h)  Ibid.  1  Fonbl.  95, 

donderry,  3  Atk.  393.  (/)  Slanning  v.  Style,  3  P.  Wms. 

(</)  Lucas  V.  Lucas,  1  Atk.  270.  339. 

(e)  Ibid.  271.     Graham  v.  London-  (/)  Beard  v.  Beard,  3  Atk.  72. 

derry,  3  Atk.  393.  (/)  Powell  v.  Hankey,  2  P.  Wms. 

(/)  Graham  V.  Londonderry,  3  Atk.  82.      Thomas    v.   Bennett,    ib.    340. 

393.  Fowler  v.  Fowler,  3  P.  Wms.    355. 

(g)  Slanning  v.  Style,  3  P.  Wms.  Lord  Townshend  v.  Windham,  2  Ves. 

339.  7.     Peacock  v.  Monk,  ib.  190. 


(1)  So  if  by  the  laws  of  another  state  (Louisiana)  the  husband  a-id  wife  can  contract  in 
relation  to  her  separate  propert)',  and  she  lends  him  moncj',  and  takes  liis  obligation  for 
it,  and  he  dies  in  Pennsylvania,  the  conti'act,  according  to  the  laws  existing  in  such  other 
state,  may  be  enforced,  at  the  suit  of  the  wife  surviving,  against  the  husband's  executors 
in  the  Courts  of  Penns}lvania.     Douglwrty  v.  S?ii'cler,  15  Serg.  k  Rawie,  84. 

(2)  jyiethodist  Episc.  Church  v.  Jaques,  3  Johns.  Cha.  Rep.  77.  JVVGli7isy''s  Appeal,  14 
Serg.  ic  Rawle,  64. 


CHAP,  v.]  OF  PARAPHERNALIA.  228 

wise;  as  where  the  wife  had  three  hundred  pounds  per  annum 
pin-money,  and  the  husband,  for  several  years  before  his  death,  paid 
her  only  hvo  hundred,  but  promised  her  that  she  should  have  the 
whole  at  last,  she  was  held  entitled  to  all  the  arrears(/?i). 

In  like  manner  shall  she  be  entitled  to  all  arrears,  if  she  lived  sep- 
arate from  her  husband(?i). 

But,  if  A.  proposing  to  give  a  married  woman  money  for  her 
separate  use,  and  to  secure  it,  give  her  a  note  for  a  certain  sum,  as 
received,  promising  to  be  accountable,  it  shall  be  assets  in  the  hands 
[229]  of  the  executor  of  the  husband.  So,  likewise,  if  a  married 
woman  deposite  money  in  A.'s  hands  to  be  kept  for  her  separate 
use,  it  shall  be  considered  as  part  of  the  husband's  estate(o). 


Sect.  III. 
Of  the  wife'' s  paraphernalia. 

The  wife,  also,  may  acquire  a  legal  property  in  certain  effects  of 
the  husband  at  his  death,  which  shall  survive  to  her  oveF  and  above 
her  jointure,  or  dower,  and  be  transmissible  to  her  personal  repre- 
sentatives(a). 

Such  effects  are  styled  paraphernalia;  a  term  which,  in  law,  im- 
ports her  bed,  and  necessary  apparel,  and  also  such  ornaments  of 
her  person  as  are  agreeable  to  the  rank  and  quality  of  the  hus- 
band(6).  Pearls  and  jewels,  whether  usually  worn  by  the  wife(c), 
or  worn  only  on  birth-days,  or  other  public  occasions(c^),  are  also 
paraphernalia. 

To  what  amount  such  claims  shall  prevail  is  a  point  which  can- 
not admit  of  specific  regulations.  It  must  be  left,  on  the  particular 
[230]  circumstances  of  the  case,  to  the  discretion  of  the  court(e). 

In  the  reign  of  Queen  Elizabeth,  jewels  to  the  value  of  five  hun- 
dred marks  were  allowed,  in  the  case  of  the  wife  of  a  viscount(/). 
A  diamond  chain,  of  the  value  of  three  hundred  and  seventy  pounds, 
where  the  lady  was  the  daughter  of  an  earl,  and  wife  of  the  king's 
sergeant  at  law,  in  the  reign  of  Charles  tire  first,  was  considered  as 
reasonable(, !,'•).  Jewels  and  plate  bought  with  the  wife's  pin-money, 
to  the  amount  of  five  hundred  pounds,  which  bore  a  small  proportion 

(m)   Ridout  v.  Lewis,  1  Atk.  2G9,  las,  Cro.  Car,  313. 

See  also  1  Eq.  Ca.  Abr.  110,  pi.  7.  {d)  Graham  v.  Londonderry,  3  Atk. 

(h)  3  Atk.  695.     1  Ves.  298,  394. 

(o)  Hodges  V.  Beverley,  Bunb.  188.  (e)  3  Bac.  Abr.  6G.     Lord  Hastings 

(a)  2  Bl. ''Com.  435.    3  Bac.  Abr.  G6.  v.  Sir  A.  Douglas,  Cro.  Car.  343. 

Off.  Ex.  Suppl.  Gl,  62.     11  Vin.  Abr.  (/)  2  Leon.  IGG.     Bindon's  case, 

178.  Moore,  213. 

{U)  Com.  Dig.  Baron  &  Feme,  F.  3.  (i')   Lord  Hastings  v.  Sir  A.  Doug- 

1  Roll.  Abr.  911.    Swinb.  part,  6,  s.  7.  las,  Cro.   Car.  343.     S,  C.  Jon.  332. 

(c)  Lord  Hastings  V.  Sir  A.  Doug-  Roll.  Abr.  911.    11  Vin.  Abr.  179.  S.  C, 


230  OF  PARAPHERNA-LIA.  [bOOK  II. 

to  the  husband's  estate,  were  regarded  in  the  same  liglit(/<).  And 
Lord  Hardwicke,  C.  held  the  widow  of  .a  private  gentleman  to  be 
entitled  to  jewels  worth  three  tiiousand  ponnds,  as  her  paraphernalia, 
and  that  the  value  made  no  difference  in  the  Court  of  Chancery(/). 
By  the  custom  of  London,  a  citizen's  widow  may  retain  some  of  her 
jewels  as  paraphernalia,  but  not  a]l(/t'). 

If  the  husband  deliver  cloth  to  the  wife  for  her  apparel,  and  die 
before  it  be  made,  she  shall  have  the  cloth,  as  of  this  species  of  pro- 
perty(/).  If  the  husband  present  his  wife  with  jewels,  for  the  ex- 
[231]  press  purpose  of  wearing  them,  they  shall  be  esteemed  merely 
as  paraphernalia,  for  if  they  were  considered  as  a  gift  to  her  separate 
use,  she  might  dispose  of  them  absolutely,  and  so  defeat  his  inten- 
t\on(m). 

The  husband,  if  inclined  to  so  unhandsome  an  exercise  of  his 
power,  may  sell,  or  give  away  in  his  life-time,  such  ornaments  and 
jewels  of  the  wife,  but  he  cannot  dispose  of  them  by  will,  any  more 
than  he  can  devise  heir-looms  from  the  heir(^^).  In  case  of  a  defi- 
ciency of  assets  for  payment  of  debts,  the  widow  shall  not  be  entitled 
to  such  paraphernalia(o),  not  even  if  they  were  presents  made  to 
her  by  the  husband  before  marriage(/>);  nor  shall  she  be  so  entitled 
where  there  are  not  assets  at  the  time  of  the  husband's  death,  although 
contingent  assets  should  afterwards  fall  in(<7);  on  the  principle,  that 
the  same  might  not  have  happened  until  twenty  or  thirty  years  after 
the  death  of  the  testator,  nor  possibly  until  after  the  death  of  the  wi- 
dow, when  the  end  and  design  of  the  widow's  wearing  her  bona  para- 
phernalia in  memory  of  her  husband  could  not  have  been  answered, 
and  therefore  it  is  reasonable  that  in  such  case  it  should  l)e  reduced 
to  a  certainty,  namely,  that  if  there  should  not  be  assets  real  or  per- 
sonal at  the  testator's  death,  or  at  least  when  the  jewels  are  applied 
in  the  payment  of  debts,  then  the  jewels  shall  be  liable. 

But  such  ornaments,  thougli  subject  to  the  debts,  shall  be  preferred 
to  the  legacies  of  the  husband,  and  the  general  rules  of  marshalling 
assets,  (which  will  be  treated  of  hereafter,)  are  applicable  in  giving 
effect  to  such  priority(/'). 

If  the  husband  pawn  the  wife's  paraphernalia,  and  die,  leaving  a 
fund  sufficient  to  pay  all  his  debts,  and  to  redeem  the  pledges,  she 
is  entitled  to  have  them  redeemed  out  of  his  personal  estate(*). 
[232]  So  where  a  husband  pledged  a  diamond  necklace  of  the  wife, 

(A)  Offley  V.  Offley,  Prec.  Chan.  27.  Moore,  216.     3  Bro.  P.  C.  187. 

(0  Northey  v.  Northey,  2  Atk.  77.  (p)  Ridout  v.  Earl  of  Plymouth,  2 

(/■•)  11  Vni.  Abr.  180.     Nels.  Chan.  Atk.  104. 

Rep,  179.  (y)  Burton  v.  Pierepoint,  2  P.  Wms. 

(/)  1  Roll.  Abr.  911.  80. 

(m)  Barley  v.  Darley,  3  Atk.  398.  (r)  2  P.  Wms.  80,  note  1.    Tipping 

(«)  2  Bl.    Com.   436.     Graham  v.  v.  Tipping,  1  P.  Wms.  729.     Tynt  v. 

Londonderry,  3  Atk.  394.  Tynt,  2  P.  Wms.  542,     Lord  Towns- 

{())  2  Bl.  Com.    436.      Tipping  v.  hend  v.  Windham,  2  Ves.  7.     Snelson 

Tipping,   1   P.   Wms.   730.     Tynt  v.  v.  Corbet,  3  Atk.  369. 

Tynt,  2  P,    Wms,  511.     Snolson    v.  (.s)  (•rahain  v.  Londonderry,  3  Atk. 

Corbet,  3  Atk.  309.     Bindon's  case,  395. 


CHAP,  v.]  OF  PARAPHERNALIA.  232 

as  a  collateral  security  for  money  borrowed  on  a  bond,  and  autho- 
rised the  pawnee  to  sell  it  during  his  absence,  at  a  sum  specified,  it 
was  held,  that  this  amounted  not  to  an  alienation,  if  it  were  not  sold 
in  his  lifetime,  and  that  it  was  redeemable  for  his  widow.(/) 

If  a  woman  by  marriage  articles  agree  to  claim  such  part  only  of 
the  effects  of  the  husband  as  he  shall  give  her  by  his  will,  she  is  ex- 
cluded from  her  paraphernalia(w).  But  her  necessary  apparel  shall, 
in  all  cases,  be  protected,  as  decency  and  humanity  require,  even 
against  the  claims  of  creditors(z^).(l) 

If  the  husband  bequeath  to  the  widow  her  jewels  for  her  life,  and 
then  over,  and  she  make  no  election  to  have  them  as  her  parapher- 
nalia, her  executor  shall  have  no  title  to  demand  them{w). 

(0  Ibid.  3  Atk.  393.  («)2Bl.Com.436.  2Roll.Abr.911. 

(m)  3  Bac.   Abr.    66.     Com.   Dig.  (w)  Clarges  v.  Albemarle,  2  Vern. 

Baron  and  Ferae,   F.  3.     Comely  v.  246. 
Comely,  2  .Vern.  49.     S.  C.  83. 


(1)  By  the  3d  section  of  the  act  of  10th  April,  1828,  entitled  "  An  act  for  the  relief  of 
the  Poor,"  (Pamph.  Laws,  286.  •  Purd.  Dig.  296,  Ed.  1831,)  if  any  person  die  after  the 
first  day  of  September,  .1828,  leaving  a  widow,  and  not  leaving  estate  sufficient  to  pay  his 
debts,  exclusive  of  the  articles  enumerated  in  the  first  section,  vi^;.  household  utensils  not 
exceeding  in  value  twenty  dollars,  the  necessary  tools  of  a  tradesman,  not  exceeding 
in  value  twenty  dollars,  all  wearing  apparel,  two  beds  and  the  necessary  bedding, 
one  cow,  two  hogs,  six  sheep,  with  the  wool  thereof,  and  the  yarn  and  cloth  manu- 
factured therefrom,  and  feed  for  the  said  cow,  hogs,  and  sheep  from  the  first  of  Novem- 
ber to  the  last  of  May,  a  stove  with  the  pipe  of  the  same  and  necessary  fuel,  a  spinning 
wheel  and  reel,  and  any  quantity  of  meat  not  exceeding  one  hundred  pounds,  six  bushels 
of  potatoes,  six  bushels  of  grain  and  the  meal  made  therefrom,  and  any  quantity  of  flax 
not  exceeding  ten  pounds,  the  thread  or  linen  made  therefrom,  and  all  bibles  and  school 
books  in  the  use  of  the  family,  his  widow  shall  be  allowed  to  retain  the  said  articles  for  her 
own  use,  and  that  of  her  family. 


233  OF  A  DONATION  MORTIS  CAUSA.  [bOOK  11. 


CHAPTER  VI. 


OF  THE  INTERESTS  OF  A  DONEE  MORTIS  CAUSA. 

Another  species  of  interest  in  the  personal  property  of  the  de- 
ceased remains  to  be  considered.  Such  as  vests  neither  in  his  ex- 
ecutor, nor  his  heir,  nor  his  widow,  in  those  respective  characters. 
It  is  created  by  a  gift  under  the  following  circumstances.  When  in 
his  last  illness,  and  apprehensive  of  the  approach  of  death,  he  delivers, 
or  causes  to  be  delivered  to  or  for  a  party  the  possession  of  any  of 
his  personal  effects,  to  keep  in  the  event  of  his  decease.  Such  gift 
is  therefore  called  a  donatio  mortis  causa.  It  is  accompanied  with 
the  implied  trust,  that,  if  the  donor  live,  the  property  shall  revert  to 
him,  since  it  is  given  only  in  contemplation(«).(l) 

A  party's  wife  is  as  capable  of  such  gift-as  any  other  person(5).(2) 
And  so  is  a  negro  brought  to  England  as  a  slave,  for  the  moment  he 
set  foot  on  English  ground  he  was  free(c). 

To  substantiate  the  gift,  there  must  be  an  actual  tradition  or  de- 
livery of  the  thing.  The  possession  of  it  must  be  transferred  in 
point  of  fact,  and  established  by  evidence  beyond  suspicion(^).(3) 
[234]  The  purse,  the  ring,  the  jewel,  or  the  watch  must  be  given  into 
the  hands  of  the  donee,  either  by  the  donor  himself  or  by  his  or- 
der(e).(4)  But  there  are  cases  in  which  the  nature  of  the  subject 
will  not  admit  of  a  corporeal  delivery;  and  then  if  the  .party  go  as 
far  as  he  can  towards  transferring  the  possession,  his  bounty  shall 

(a)  2B1.  Com.  514.     11  Vin.  Abr.  {d)    Walter  v.   Hodge,   2   Swans. 

176.    Hedges  v.  Hedges,  Prec.  in  Ch.  Rep.  92. 
269.     Drury  V.  Smith,  1  P.  Wins.  404.  (e)  Ward   v.   Turner,  2  Ves.  431. 

(Z»)  Lawson  V.  Lawson,  1  P.  Wms.  Tate   v.    Hilbert,  2    Ves.    jun.    111. 

441.    Miller  v.  Miller,  3  P.  Wms.  356.  Drury  v.  Smith,  1  P.  Wms.  404.  Law- 

(c)  Shanley  v.    Harvey,  2  Eden's  son  v.  Lawson,  441. 
Rep.  126. 


(1)  Wella  V.  Tticker,  3  Binn.  370. 

(2)  So  a  delivery  to  Uie  wife  of  the  donor,  for  the  use  of  a  third  person,  is  a  sufficient  de- 
livery to  make  a  good  donatio  mortis  causa.     Wells  v.  Tucker,  3  Binn.  366.  , 

(3)  To  this  principle  is  to  be  referred  the  decision  in  Windoivs  v.  tMitcJiell,  1  Murphy's 
Rep.  127,  and  upon  this  ground  it  may  be  sustained. 

(4)  There  is  no  difference  in  the  delivery  required  in  cases  of  donatio  caiisa  mortis,  and 
other  cases  of  parol  gifts;  in  all  such  cases,  the  only  question  is,  whether  tlie  donor  has 
parted  with  his  dominion  over  the  property  or  not;  and  Iience  if  the  possession  pass  from 
the  donor  to  the  donee  in  his  presence,  and  with  his  consent,  whether  it  be  delivered  by 
his  hand  or  only  by  his  direction  is  immaterial.  JSt'Doiuell  v.  JMurdock,  1  Nott  &c 
M'Cord's  Rep.  237. 


CHAP.  VI.]  OF  A  DONATION  MORTIS  CAUSA.  234 

prevail.  Thus,  a  ship  has  been  held  to  be  delivered  by  the  delivery 
of  a  bill  of  sale  defeasible  on  the  donor's  recovery.  And  in  a  recent 
case,  the  Lord  Chancellor  seemed  to  be  of  opinion,  that  such  dona- 
tion might  be  effected  by  deed  or  writing(y). 

The  delivery  also  of  the  key  of  a  wai'ehouse,  in  which  goods  of 
bulk  were  deposited,  has  been  determined  to  be  a  valid  delivery  of 
the  goods  for  such  a  purpose(^).  So  the  delivery  of  the  key  of  a 
trunk  has  been  decided  to  amount  to  a  delivery  of  the  trunk,  and  its 
contents(^).  Nor  in  those  instances  were  the  key  and  bill  of  sale 
considered  in  the  light  of  symbols,  but  as  modes  of  attaining  the 
possession  and  enjoyment  of  their  property (z).  So  a  bond(l)  given 
in  prospect  of  death,  although  a  chose  in  action,  is  a  good  donation 
mortis  causa,  for  a  property  is  conveyed  by  the  delivery(_y).  Such, 
likewise,  have  been  the  decisions  in  [235]  regard  to  bank  notes(^'). 
In  all  these  cases,  the  donor  delivers  as  complete  a  possession  as  the 
subject  matter  will  permit. 

But  bills  of  exchange,  promissory  notes,(2)  and  checks  on  bank- 
ers, seem  incapable  of  being  the  objects  of  such  donation(/).  The 
delivery  of  these  instruments  is  distinguishable  from  that  of  a  bond, 
which  is  a  specialty,  and  itself  the  foundation  of  the  action,  the  de- 
struction of  which  destroys  the  demand;  whereas  the  bills  and  notes 
are  only  evidence  of  the  contract(w). 

Nor  shall  a  delivery  merely  symbolical  have  such  operation.  As, 
where  on  a  deed  of  gift  not  to  take  place  till  after  the  grantor's  death, 
a  sixpence  was  delivered  by  way  of  putting  the  grantee  in  posses- 
sion; the  ecclesiastical  court  held  such  delivery  to  be  insufficient  for 
the  purpose,  and  pronounced  for  the  instrument  as  a  will(?i).  So  it 
was  determined  in  chancery,  that  the  delivery  of  receipts  for  South 
Sea  annuities  was  in  like  manner  ineffectual,,  and  that,  to  make  it 
complete,  there  ought  to  have  been  a  transfer  of  the  stock(o).  Least 
of  all  shall  such  donation  be  effectuated  by  parol,  as,  merely  saying, 
"  I  give,"  without  any  act  to  transfer  the  property(/)).  Nor  where 
a  man  considering  himself  dying  took  certain  property  out  of  an  iron 
chest,  and  wrote  the  names  of  two  persons  upon  the  envelope  con- 

(/)  Tate  V.  Hilbert,  2  Ves.  jun.  120.  Miller  v.  Miller,  3  P.  Wms.  356.  Hill 

Ig)  Ward  V.  Turner,  2  Ves.  434.  v.  Chapman,  2  13ro.  Ch,  Rep.  612. 

(A)  Jones  v.  Selby,  Free,  in  Chan.  (/)  Miller  v.  Miller,3  P.  Wms.  356. 

300.     Ward  v.   Turner,  2  Ves.  441.  Ward  v.  Turner,  2  Ves.  442.     Tate  v. 

Vide  also  Tate  v.  Hilbert,  2  Ves.  jun.  Hilbert,  4  Bro.  Ch.  Rep.  291. 
116.  {rii)  Ward  v.  Turner,  2  Ves.  442. 

(/)  Ward  V.  Turner,  2  Ves.  443.  ('/)  Ibib.  2  Ves.  440. 

( j)  Sudgrove  v.  Baily,  3  Atk.  214.  ^0  I^id.  2  Ves.  431. 

Ward  V.  Turner,  2  Ves.  441.     Blount         (y>)  Ibid.  2  Ves.  444.     Tate  v.  Hil- 

V.  Burrow,  4  Bro.  Ch.  Rep.  72.  bert,  2  Ves.  jun.  120. 

(Jc)  Drury  v.  Smith,  1  P.  Wms.  404. 


(1)  Wells  V.  Tucker,  3  Binn.  366.     Gardner  v.  Parker,  3  Madd.  Rep.  184.     And  see 
Hurst  V.  Beach,  5  Madd.  Rep.  351,  which  was  the  case  of  mortgage  deeds  and  of  a  bond. 

(2)  Contra,  frriffht  v.' Wri^'ht,  I  Cowen'slicp.  598. 

20 


235  OF  A  DONATION  MORTIS  CAUSA.  [bOOK  II. 

tainino-  it,  and  declared  it  to  be  his  intention  that  they  should  have 
such  proi)orty  upon  his  death,  and  then  returned  it  to  the  chest  and 
kept  the  keys  in  liis  own  possession,  never  having  made  an  actual 
delivery  thereof  to  the  parties  or  to  trustees  for  thcm(<7).  Nor  shall 
a  present  absolute  [236]  gift  be  considered  as  of  .this  denomination. 
To  bring  it  within  the  class,  it  must  be  made  to  take  etiect  only  on 
the  death  of  the  donor(;-).  Therefore,  the  gift  of  a  check  on  a  banker, 
<*Pay  to  self  or  bearer,  two  hundred  pounds,"  and  also  of  a  promis- 
sory note,  being  absolute  and  immediate,  was  held  clearly  on  that 
ground,  to  be  no  donatio  77io)'t2S  c(nisd{s).  But  where  the  donor 
gave  a  bill  on  his  banker  with  an  indorsement  expressing  that  it  was 
for  the  donee's  mourning,  and  giving  directions  respecting  it,  the 
bill  was  decided  to  be  an  appointment  in  the  nature  of  such  dona- 
tion, since  it  was  for  a  purpose  necessarily  supposing  death(/). 

Simple  contract  debts  and  arrears  of  rent  are  incapable  of  this 
species  of  disposition,  because  there  can  be  no  delivery  of  them(?;). 

Whether  the  delivery  of  a  mortgage  deed  will  amount  to  such  gift 
of  the  money  due  on  the  security,  seems  to  have  been  an  undecided 
point(i'),  until  very  lately,  but  it  has  been  recently  held,  that  a  mort- 
gage, or  a  bond  given  as  a  collateral  security  for  money  due  on 
mortgage,  cannot  be  made  the  subject  of  a  donatio  mortis  causu{w). 

If  the  donor  die,  the  interest  of  the  donee  is  completely  vested;  nor 
is  it  necessary  that  the  gift  should  be  proved  as  part  of  the  will, 
it  operating  on  the  executor  as  a  declaration  of  trust,  and  his  assent 
[237]  to  it  is  not  requisite,  as  in  the  case  of  a  legacy(ar).  But  the 
gift,  however  regularly  Inade,  shall  not  prevail  against  creditors(y). 

Such  is  the  interest  which  the  executor,  the  heir,  the  successor,  the 
devisee,  the  remainder-man,  the  widow,  and  the  donee  mortis  cau- 
sa of  the  testator  resjiectively  take  in  the  personal  effects. 

(^)  Bunn  V.  Markham,  Holt's  Rep.  C.   2  Ves.   436.     Hassell  v,   Tynte, 

352.     7  Taunt  Rep.  224.  Ambl,  318.     11  Vin.  Abr.  178.     Law- 

(r)  Tate  v.  Hilbert,  2  Ves.  jun.  120.  son  v.  Lawson,  1  P.  Wins.  441.     Mil- 

(s)  Tate  V.  Hilbert,  2  Ves.  jun.  HI.  ler  v.  Miller,  3  P.  Wins.  357. 

4  Bro.  Ch.  Rep.  286,  S.  C.  {w)  DufBeld  v.  Elwes,  1  Sim.  & 

(/)  Lawson  v.  Lawson,  1  P.  Wins.  Stu.  239. 

441,  et  vide  Tate  v.  Hilbert,  2  Ves.  {x)  2  Bl.  Com.  514.     Tate  v.  Hil- 

jun.  111.  bert,  2  Ves.  jun.  120. 

(u)  Ward  V.Turner, 2  Ves. 436.  442.  {y)  2  Bl.  Com.  514.     Tate  v.  Hil- 

(«)  Vid.  3  P.  Wms.  358,  in  note.    S.  bert,  2  Ves.  jun.  120. 


CHAP.  VII.]  EFFECTS  OF  EXECUTORS.  •  238 


CHAPTER  VII. 


HOW  EFFECTS  WHICH  AN  EXECUTOR  TAKES  IN  THAT  CHARACTER 
MAY  BECOME   HIS  OWN. 

The  property  which  an  executor  takes  in  his  representative  ca- 
pacity may,  in  certain  instances,  be  converted  into  his  own.  As, 
first,  in  regard  to  the  ready  money  left  by  the  testator.  On  its 
coming  into  the  hands  of  the  executor,  the  property  in  the  specific 
coin  nuist  of  necessity  be  altered ;  for  when  it  is  intermixed  with  the 
executor's  own  money,  it  is  incapable  of  being  distinguished  from 
it,  although  he  shall  be  accountable  for  its  value;  and  therefore  a 
creditor  of  the  testator  cannot  by  fieri  facias  on  a  judgment  recov- 
ered against  the  executor,  take  such  money  as  de  bonis  testaroris  in 
execution(«).  So,  if  the  testator  died  indebted  to  the  executor,  or 
the  executor  not  having  ready  money  of  the  testator,  or  for  any 
other  good  reason,  shall  pay  a  debt  of  the  testator's  with  his  own 
money,  he  may  elect  to  take  any  specific  chattel  as  a  compensation; 
and  if  it  be  not  more  than  adequate,  the  chattel  by  such  election  shall 
become  his  own(6):(])  consequently,  if  by  such  election  he  acquire 
the  absolute  ownership  of  the  chattel,  and  die,  his  executor  may  de- 
fend himself  in  an  action  of  de[239]tinue  brought  for  the  same  by  the 
surviving  executor  of  the  first  testator. 

But  if  the  debt  due  to  him  from  the  testator  amount  to  the  full 
value  of  all  his  effects  in  the  executor's  hands,  there  is  a  complete 
transmutation  of  the  property  in  favour  of  the  executor,  by  the  mere 
act  and  operation  of  law:  in  the  former  case  his  election,  and  in  the 
latter  the  mere  operation  of  law,  shall  be  equivalent  to  a  judgment 
and  execution,  for  he  is  incapable  of  suing  himself(c).(2) 

So  in  the  case  of  a  lease  of  the  testator  devolved  on  the  executor, 
such  profits  only  as  exceed  the  yearly  value  shall,  as  it  has  been  al- 
ready stated,  be  held  to  be  assets;  it  therefore  follows,  that  if  the  ex- 
ecutor pay  the  rent  out  of  his  own  purse,  the  profits  to  the  same 

(c)  Off.  Ex.  89.  185.  infr. 

(i)  Off.  Ex.  89.   Dy.  187  b.  Plowd.  (c)  Plowd.  185. 


(1)  lAvingston  v.  J^erwkirk,  3  Johns.  Cha.  Rep.  312.  But  he  cannot  make  the  property 
of  the  testator  his  own  by  paying  debts  out  of  his  own  moneys  to  the  value  of  the  appraise- 
ment. Hally.  Gr(^</j,  2  Harr.  Jk  Johns.  483.  //asfc«'s  .4f/m.v.  G/ewj,  7  Harr.  &  Johns. 
17. 

(2)  In  Pennsylvania,  since  the  act  of  16tli  April,  1794  (Purd.  Dig.  .372.  3  Ball.  Laws, 
521.  3  Sm.  Laws,  143),  an  executor  or  administrator  cannot  retain  liis  whole  debt  against 
creditors  in  equal  degree  when  there  is  a  deficiency  of  assets;  he  is  only  entitled  to  retain 
Itvo  rata.     Ex  parte  Mcason,  5  Binn.  liep.  l.Ti7. 


239  •  EFFECTS  OF  EXECUTORS.  [bOOK  II. 

amount  shall  be  his(^/).  There  are  likewise  other  means  of  thus 
changino-  the  property;  as  if  the  testator's  goods  be  sold  under  sl  fieri 
facias,  the  executor,  as  well  as  any  other  person,  may  buy  such  goods 
of  the  sheriff;  and  in  case  he  does  so,  the  property  which  was  vest- 
ed in  him  as  executor,  shall  be  turned  into  a  property  in  jure  2)ro- 
prio{e). 

If  the  executor  among  the  testator's  goods  find,  and  take  some, 
which  were  not  his,  and  the  owner  recover  damages  for  them  in 
[240]  an  action  of  trespass  or  trover,  in  this,  as  in  all  similar  cases, 
the  goods  shall  become  the  trespasser's  property,  because  he  has 
paid  for  them(y). 

If  the  grantee  of  the  next  presentation  to  a  living  die  after  the 
church  becomes  void,  and  before  presentation,  his  executor  shall 
have  the  benefit  of  presenting.  Nor  shall  it  be  regarded  as  assets, 
since  it  is  incapable  of  being  sold(^).  But  if  in  that  case  a  stranger 
shall  present,  and  procure  his  clerk  to  be  admitted,  damages  recover- 
ed by  the  grantee's  executor  in  a  quarc  impedit  shall  be  assets(A). 

(rf)  Off.  Ex.  90,  91.  {g)  Off.  Ex.  73.     Shep.  Touchst. 

(e)  Ibid.  91.  496. 

(/)  Ibid.  {h)  Off.  Ex.  73. 


CHAP.  VIII.]  MARRIED  WOMAN  EXECUTRIX.  241 


CHAPTER  VIII. 


OF  THE  INTEREST  OF  AN  ADMINISTRATOR,  GENERAL  AND  SPECIAL 

OF  A  MARRIED  WOMAN    EXECUTRIX    OR  ADMINISTRATRIX OF  SE- 
VERAL   EXECUTORS    OR    ADMINISTRATORS OF  THE    EXECUTOR  OF 

AN    EXECUTOR OF    AN    ADMINISTRATOR    DE     BONIS    NON OF    AN 

EXECUTOR  DE  SON  TORT. 

As  an  administrator  has  the  office  and  quality  of  an  executor,  the 
interest  of  the  one  in  the  property  of  the  deceased  is  in  all  respects 
the  same  as  that  of  the  other(«).  The  interest  of  special  or  limited 
administrators  is  also,  during  its  continuance,  the  same  as  that  of  an 
executor(6);  hut  they  are  not  vested  (as  will  be  shown  in  its  proper 
place)  with  the  same  powers  and  authority  as  belong  to  him(c). 

If  a  married  woman  be  an  executrix,  or  administratrix,  the  hus- 
band has  a  joint  interest  with  her  in  the  effects  of  the  deceased; 
such  as  devolves  the  whole  administration  upon  him,  and  enables 
him  to  act  in  it  to  all  purposes,  with  or  without  her  assent(G?).(l) 
[242]  Therefore  it  is  held  that  he  may  surrender  or  dispose  of  a 
term  which  was  vested  in  her  in  that  capacity,  and  such  surrender 
or  disposition  shall  be  binding  upon  her(e).  So  a  gift,  or  release  of 
any  part  of  the  deceased's  personal  property  by  the  husband  alone 
shall  be  equally  available(/);  but  the  wife  has  no  right  to  adminis- 
ter without  the  husband:  and  such  acts  as  have  been  just  mentioned, 
if  performed  by  herwithout  his  concurrence,  will  be  of  no  validity(^). 
In  case  of  the  husband's  death,  the  interest  never  having  been  di- 
vested, shall  survive  to  her:  but  if  she  die,  it  shall  not  survive  to  the 
husband,  inasmuch  as  it  belonged  to  him  merely  in  her  right,  as 
representative  of  the  deceased  (A).  And  although,  generally  speak- 
ing, a  feme  covert  cannot  make  a.  will  without  the  assent  of  her 
husband,  yet  without  his  assent  she  may  make  a  will,  and  continue 
the   executorship   in   respect  to  the  property  thus  vested  in  her 

(a)  Off.  Ex.  259.     Off.  Ex.  Suppl.  Ankerstein  v.  Clarke,   4  Term   Rep. 

48.  5  Co.  83.     Blackborough  v.  Davis,  617. 

1  P.  Wms.  43.    Vid.  Hudson  v.  Hud-  (e)  Thrustout  v.  Coppin,  Bl.  Rep. 

son,  1  Atk.  4G0,  and  Jacomb  v.  Har-  801. 

wood,  2  Ves.  267,  and  infr.  (/)  Yard  v.  Ellard,  Salk.  117.    Off. 

(i)  2  Fonbl.  387.  Ex.  208. 

(c^  11  Vin.  Abr.  104.  105.     3  Bac.  (g)  Wankford  v.  Wankford,  Salk. 

Abr.'l3,  14.  306.     Off.  Ex.  207,  208,     Com.  Dig. 

(d)  Yard  v.  Eland,  Ld.  Raym.  369.  Admon.  D.  vid.  supra,  9. 

Com.  Dig.  Admon.  D.     Wankford  v.  (h)  Off.  Ex.  208.     Com.  Dig.  Baron 

Wankfoid",  1  Salk.  306.    Off.  Ex.  199.  and  Feme,  F.  I.     Dy.  331. 

(1)  Lindsay  v.  Lindsat/^s  Mm.  1  Dcsaus.  Rep.  153. 


242  MARRIED  V/OMAN  EXECUTRIX.  [bOOK  II. 

in  miter  droit{i).  Hence  if  the  wife  of  A.  have  debts  due  to  her 
in  her  own  right,  and  be  also  executrix  to  B.,  and  make  a  will  with- 
out her  husband's  assent,  appointing  an  executor,  the  will,  in  respect 
to  the  goods  and  credits  which  belonged  to  her  as  the  executrix  of 
B,,  shall  be  valid,  and  her  executor  may  prove  it  in  opposition  to 
the  husband.  But  as  to  the  debts  due  to  her  in  her  private  capacity, 
the  will  shall  be  void,  and  [243]  the  husband  may  take  administra- 
tion: she  shall  be  considered  as  dying  testate  in  regard  to  the  pro- 
perty of  which  she  was  possessed  as  executrix,  and  as  intestate  in 
regard  to  that  to  which  she  was  entitled  in  her  own  right(^). 

If  there  be  several  executors  or  administrators,  they  are  regarded 
in  the  light  of  an  individual  person.  They  have  a  joint  and  entire 
interest  in  the  testator's  efl'ects,  which  is  incapable  of  being  divided(/), 
and  in  case  of  death,  such  interest  shall  vest  in  the  survivor(7w). 

So  also  an  executor  of  an  executor,  in  however  remote  a  series, 
has  the  same  interest  in  the  goods  of  the  first  testator,  as  the  first  and 
immediate  executor(w). 

An  administrator  de  bonis  non  has  also  the  same  interest  in  such 
of  the  effects  as  remain  unadministered,  as  was  vested  in  the  executor, 
or  antecedent  administrator. 

An  executor  de  son  tort  has  no  interest  whatever  in  the  property, 
and  therefore  can  maintain  no  action  in  right  of  the  de(?eased(o).(l) 

[244]  But  if  the  executor  de  son  tort  take  out  administration,  it 
shall  to  most  purposes  qualify  the  wrong,  and  vest  the  same  interest 
in  him  as  in  other  administrators,  and  consequently  such  as  shall 
have  relation  to  the  time  of  the  intestate's  death(^).(2) 

(0  2  Bl.  Com.  408.     Off.  Ex.  199.  L.  273.     Shep.  Touchst.  4G4. 
3  13ac.  Abr.  10.     Off.  Ex.  Suppl.  20.  (o)   11   Vin.  Abr.   215.     Parker  v. 

(/,)  Off.  Ex.  202.  Kitt,  12  Mod.  471,  472.     2  Bl.  Com. 

(/)  Com.  Dig.  Admon.  B.  12.     Dy.  507. 
23  b.     3   Bac.   Abr.  30.     Jacomb    v.  {p)  11  Vin.  Abr.  214—217.     Parker 

Harwood,  2  Ves.  267,  and  vid.  irifr.  v.  Kitt,  12  Mod.  471,  472.     Kenrick  v. 

(m)  6  Co.  36.  D}^  160.  Eyre  v.  Burges,  Moore  126.  Pyne  v.  Wool- 
Countess  of  Shaftsbury,  2  P.  Wms.  land,  2  Ventr.  179.  3  Bac.  Abr.  25, 
121.  vid.  supra,  37.  26.     Curtis  v.  Vernon,  3  Term  Rep. 

(n)  Com.  Dig.  Admon.  G.    Off.  Ex.  590.     Ibid.  2  H.  Bl.  26. 
259.    11  Vin.  Abr.  240.   4  Burn.  Eccl. 

(1)  Lee  V.  Wright,  1  Rawle's  Rep.  151.  Nor  be  cited  to  account  before  the  Register" 
Peeble's  appeal,  15  Serg.  h  Rawle,  41. 

(2)  Sfiillaber  v.  Wyman,  Jlndre-M  v.  GalUson,  15  Mass.  Rep.  322.  325.  Rattoon  v. 
Overacker,  8  Jolins.  Rep.  97,  2d  edit.     Contra,  Green  v.  Dewit,  1  Root.  183. 


BOOK  III. 

OF  THE  POWT^RS  AXD  DUTIES    OF  EXECUTORS  AND 
AD^VnNISTRATORS. 


CHAPTER  1. 


OF  THE  FUNERAL OF  MAKING  AN  INVENTORY OF  COLLECTING 

THE  EFFECTS. 


Sect.  1.  '     " 

Of  the  funeral. 

The  subject  now  leads  me  to  consider  the  powers  and  duties  of  an 
executor,  or  administrator(«). 

And  first,  he  is  to  bury  the  deceased  according  to  his  rank  and 
circumstances(6).  It  has  been  ah'eady  stated,  that  an  executor,  be- 
fore probate,  may  perform  this  pious  office(c);  and  that  the  perform- 
ance of  it  by  a  stranger  shall  not  constitute  him  an  executor  de  son 
tort{d).  The  expenses  attending  it  shall  be  allowed  in  preference 
to  all  debts  and  charge3(e);(l)  but  the  executor  is  not  justified  in 
incurring   such   as   are  extravagant(/).(2)     Nor  as  [246]  against 

(a)  8  Co.  136.  (e)  11  Vin.  Abr.  432.     Br.  Tit.  Ex- 

(Jb)  OfBey  v.  Offley,  Prec.  Chan.  27.  ecutor,  pi.  172.     Dr.  and  Stud.  Dial. 

Com.  Dig.  Admon.  C.  2.  c.  10. 

■  (c)  Supr.  46.  (/)  2  Bl.  Com.  508. 
\d)  Ibid.  40. 


(1)  By  the  I4th  section  of  the  act  of  19th  April,  1794  (Purd.  Dig.  376.  3  Sm.  Laws, 
132),  executors  and  administrators  are  to  pay,  so  far  as  they  have  assets,  the  debts  in-Uie 
following  order;  first,  physic,  funeral  expenses,  and  servants'  wages;  second,  rents,  8cc. 

(2)  M'GUnsey's  Appeal,  14  Serg.  k  Rawie,  f)4.  Metz's  Appeal,  11  Serg.  k  Rawie,  205. 
And  the  court  have  refused  to  allow  the  administrator  a  sum  of  money  charged  against 
the  estate  of  the  intestate  for  mourning  for  tlie  family,  as  against  those  of  the  next  of  kin 
who  received  no  part  of  the  mourning.     Flintluim^s  Appeal,  11  Serg.  &  llawle,  16.     Sec 


246  OF  THE  INVENTORY.  [bOOK  III. 

creditors  shall  he  be  warranted  in  more  than  arc  absolutely  neces- 
sarv.  In  strictness,  no  funeral  expenses  are  allowed  in  the  case  of 
an  insolvent  estate,  except  foi-  the  collni,  shroud,  and  ringing  the  bell, 
the  fees  of  the  parson,  clerk,  sexton,  and  bearers;  but  not  for  the  pall, 
or  ornanients(,ij-).  Still  less  shall  charges  for  feasts  and  entertain- 
ments be  admitted;  and  indeed  in  any  case  they  seem  incongixious 
to  so  mournful  an  occasion(//).  If  the  executor  neglect  the  observ- 
ance of  these  rules  he  will  be  chargeable  with  a  species  of  devasta- 
tion or  waste  of  the  testator's  property,  which  shall  be  prejudicial 
only  to  himself,  and  not  to  the  creditors,  or  legatees(/). 

The  executor  must  also  prove  the  will;  or,  in  case  of  intestacy, 
the  next  of  kin  must  take  oijt  administration,  within  the  six  months 
limited  by  the  statute,  provided  they  respectively  act(/»,'). 

A  memorial  and  registry  are  also  required  by  diii'erent  acts  of 
parliament(/)  of  all  wills  which  afl'ect  any  lands  or  tenements  in 
the  county  of  York,  or  ]Middlesex,  excepting  copyhold  estates,  leases 
at  a  rack-rent,  or  leases  not  exceeding  twenty-one  years  [247]  where 
the  actual  possession  accompanies  the  lease,  and  chambers  in  Ser- 
jeant's Inn,  the  Inns  of  Courts,  and  Inns  of  Chancery. 


Sect.  II. 

Of  the  making  of  an  inventory  hy  the  executor,  or  administrator. 

An  executor,  or  administrator,  before  he  administers,  except  by 
the  performance  of  such  acts  as  cannot  be  deferred,  as  disposing  of 
perishable  articles(</),  is  likewise  bound,  pursuant  to  the  stat.  21  H. 
S.  c.   5,(1)  passed  in  affirmance  of  the  ecclesiastical  law,  to  make 

{g)  Shilleg's  case,  Salk.  296.  L.  of  {k)  Vid.  supr.  43.  65.  96. 

Ni.  Pri.  113.     4  Burn.  Eccl.  L.  301.  (/)  Stat.  2  and  3  Ann.  c.  4.     6  Ann. 

Off.  Ex.  174.     Greenside  v.  Benson,  3  c.  35.     7  Ann.  c.  20.     8  Geo.  2.  c.  6. 

Atk.  249.     3  Bac.  Abr.  85.  vid.  2  Bl.  Com.  343. 

(/()  Off.  Ex.  131.  (o)  4  Burn.  Eccl.  L.  250.     Swinb. 

(0  2  Bl.  Com.  508.     Godolph.  p.  2,  p.  6,  s.  8. 
c.  26,  s.  2. 


also  Johnson  v.  Baker,  2  Carr.  k  Payne's  Rep.  207.  This  case,  though  of  general  ap- 
plication and  some  importance,  has  been  omitted  by  the  editors  of  the  English  Common 
Law  Reports,  in  preparing  the  12th  volume  of  that  publication. 

(1)  That  part  of  the  stat.  21  H.  c.  5,  is  reported  by  the  judges  as  in  force  in  Pennsyl- 
vania, which  relates  to  the  persons  to  whom  administi-atioh  is  to  be  granted.  (3  Binn.  618. 
Roberts''  Dig.  250.)  The  practice,  however,  has  always  been  for  the  executor  to  file  an 
inyentory,  and  appraisement  of  the  personal  estate  of  the  testator,  according  to  the  course 
pointed  out  in  the  text,  though  there  was  no  provision  in  any  act  of  Assembly  requiring 
an  executor  so  to  do,  except  in  the  cases  set  forth  in  the  1st  sect,  of  27th  March,  1713 
(Purd.  Dig.  610.  1  Dall.  Laws,  98.  1  Sm.  Laws,  81 ),  until  the  passage  of  the  act  of  the 
15lh  March,  1832,  "relating  to  Registers  and  Registers'  Courts,"  by  the  15th  section  of 
■which  it  is  made  the  duty  of  executors  and  administrators,  to  "  exhibit  an  inventory  into 
the  Register's  Office  within  thirty  days"  from  the  time  of  administration  granted.  (Pamph. 
Laws,  139.) 


CHAP.  1.]  'OF  THE  INVENTORY.  247 

an  inventory  of  the  deceased's  personal  estate  and  effects,  in  the  pre- 
sence of  at  least  two  of  his  creditors,  or  legatees,  or  next  of  kin: 
and  in  their  default,  or  absence,  of  two  other  honest  persons;  and 
the  same  shall  cause  to  be  indented,  of  which  one  part  shall  be  de- 
livered in  to  the  ordinary  upon  oath,  and  the  other  part  shall  remain 
in  the  possession  of  such  executor  or  administrator.  And  the  ordi- 
nary shall  not,  under  the  penalty  of  ten  pounds,  refuse  to  take  such 
inventory,  when  so  presented  to  him(6).  Also,  by  [248]  the  stat. 
22  &  23  Car.  2.  c.  10,  as  hath  been  before  mentioned(c),  an  admin- 
istrator must  enter  into  a  bond,  with  two  or  more  securities,  condi- 
tioned, among  other  things,  for  his  exhibiting  into  the  registry  of 
the  court,  at  or  before  a  day  specified,  a  true  and  perfect  inventory 
of  the  goods,  chattels,  and  credits  of  the  deceased  come  to  his  pos-  . 
fiession(</).(l) 

'  An  inventory  is  thus  required  for  the  benefit  of  creditors,  and 
legatees,  or  parties  in  distribution(e).  It  must  be  written  or  en- 
grossed on  paper  or  parchment  duly  stamped (/).  It  is  to  contain 
a  full,  true  and  perfect  description  and  estimate  of  all  the  chattels, 
real  and  personal,  in  possession  and  in  action,  to  which  the  executor 
or  administrator  is  entitled  in  that  character,  as  distinguished  from 
the  heir,  the  widow,  and  the  donee  mortis  causa  of  the  testator,  or 
intestate(^).  It  must  also  distinguish  such  debts  as  are  sperate,  and 
those  which  are  doubtful,  or  desperate(A).  By  the  executor  it  must 
be  exhibited  within  a  competent  time:  what  shall  be  so  considered, 
depends  on  the  discretion  of  the  ordinary,  regulated  by  the  distance 
at  which  the  goods  lie  from  the  residence  of  the  executor,  and  other 
circumstances(/).  An  administrator  is  [249]  bound  pursuant  to 
the  Stat,  of  Car.  2.  to  exhibit  his  inventory  before  the  ordinary 
by  the  time  specified  in  the  condition  of  the  bond,  and  must  do  so  at 
his  peril(y)i(2) 

(i)  3  Bac.  Abr.  45.     4  Burn.  Eccl.  47.     4  Burn.  Eccl.  L.  253,  254. 

L,  251.  (A)  4  Burn.  Eccl.  L.  254.     3  Bac. 

(c)  Supr.  97.  Abr.  47.     L.  of  N.  P.  140. 

\d)  3  Bac.  Abr.  46.     11  Vin.  Abr.  {i)  3  Bac.  Abr.  47.     Swinb.  p.  6,  s. 

358.  8.     4  Hum.  Eccl.  L.  265. 

(e)  3  Bac.  Abr.  45.   Swinb.  p.  6,  s.  6.  {j)  3  Bac.  Abr.  47.     Archbishop  of 

(/)  Vid.  Append.  Canterbury  v.  Wills,  Salk.  251. ' 

(g)  2  Bl.  Cora.  510.     3  Bac.  Abr. 


(1)  In  Pennsylvania  the  register  is  bound,  upon  granting  administration  of  the  goods 
and  chattels  of  persons  dying  intestate,  to  take  a  bond  or  bonds  in  the  name  of  the  com- 
monweahh,  conditioned  among  other  things  for  making  a  true  and  perfect  inventory  ot 
the  goo<>s  of  the  deceased,  which  have  or  shall  come  to  his  bands,  possession  or  know- 
ledge, with  two  or  more  sufficient  sureties.  And  by  the  second  section  ot"  the  act  ot  '27th 
March,  1713  (Purd.  Dig.  Gl  1.  I  Ball.  Laws,  98.  1  Sm.  Laws,  81 ),  "  Where  <iny  letters 
of  administration  shall  be  granted,  and  no  bond  with  sureties  given,  as  the  law  requires, 
such  letters  of  administration  shall  be  void,  and  of  none  effect;  and  die  register  that  grants 
the  same,  and  his  sureties,  shall  be  liable  to  pay  all  damages  which  shall  accrue  to  any 
person  by  reason  thereof.  Act  of  15th  March,  183'i,  sect.  24.  '■17.  (Pampb.  Laws,  141,  14'2.) 

(2)  The  inventory,  by  the  24tli  section  of  the  act  of  15th  March,  1832,  must  be  furnished 

21 


249  OP  THE  INVENTORY.         •  [bOOK  IH. 

And  the.judge  has  authority  to  cite  or  summon  cither  of  them  for 
such  a  purpose,  not  only  at  the  suit  of  a  party,  hut  at  his  own  discre- 
tion(/5');  and  if  they  neglect  hringing  in  the  inventory,  to  pronounce 
them  contumacious(/). 

In  point  of  law,  nevertheless,  it  is  the  duty  both  of  an  executor 
and  an  administrator,  of  their  own  accord(7w),  to  exhibit  an  inven- 
tory; the  former  within  a  reasonable  time,  the  latter  at  the  time 
limited  by  the  condition  of  the  administration  bond.  And  the  courts 
formerly  considered  the  neglect  of  this  duty  in  a  light  unfavourable 
to  the  party,  especially  where  there  was  a  deficiency  of  assets:  and 
although  not  conclusive  against  him,  yet  as  exposing  him  to  imputa- 
tion; and  that  the  omission  was  the  less  to  be  excused,  since  neither 
at  law  nor  iri  equity  is  the  inventory  final;  it  is  permitted  him  to 
show  that  the  assets  come  to  his  hands  amount,  from  unforeseen  cir- 
cumstances, to  less  than  he  may  have  originally  stated  them(7i). 
But  although  such  be  the  legal  obligation  imposed  on  an  executor  or 
administrator,  in  every  case,  to  produce  an  inventory,  yet  the  prac- 
tice of  the  spiritual  courts  seems  in  this  point  to  have  been  gradu- 
ally relaxing:  at  one  period  it  appears  to  have  [250]  been  usual  for 
the  executor,  or  administrator,  after  probate,  or  administration,  to 
exhibit  an  inventory,  which  was  considered  as  authenticated  by  the 
general  oath  he  had  taken  for  the  due  execution  of  the  will,  or  ad- 
ministration of  the  effects,  and  for  exhibiting  a  true  inventory.  Yet 
then  he  was  liable  to  be  called  upon  to  exhibit  a  farther  inventory 
on  his  special  oath,  at  the  suit  of  a  party  interested(o).  But  accord- 
ing to  the  practice  which  at  present  prevails,  neither  the  executor, 
nor  administrator,  in  general  cases,  exhibits  any  inventory  whatso- 
ever, unless  he  be  cited  for  that  purpose  in  the  spiritual  court  at  the 
suit  of  a  creditor  or  legatee,  or  party  in  distribution(/?);  and  in 
that  case  he  is  bound  to  exhibit  an  inventory  and  account(5');  and 
his  former  general  oath  will  not  be  sufficient;  but  the  inventory  thus 
exhiliited  must  be  verified  by  a  special  oath,  either  personally,  or  by 
virtue  of  a  commission(r).  The  court  however  may  exercise  a  dis- 
cretion as  to  the  sort  of  inventory  it  will  accept,  particularly  in  com- 
plicated cases(5). 

It  is,  however,  the  part  of  a  prudent  person,  v^rho  sustains  this  of- 

{k)    Com.   Dig.  Admon.   B.  7.     4  Kaines,  2  Ves.  193. 

Burn.  Eccl.  L.  250. 265.    Sed.  vid.  Pe-  (o)  4  Burn.  Eccl.  L.  250.  265,  266. 

tit  V.  Smith,  5  Mod.  247.  1  Ought.  344. 

(Z)  Griffiths  v.  Bennett,  2  PhUl.  364.  (p)  Ex  relat. 

(w)  Stat.  21  Hen.  8,  c.  5.     Arch-  (q)  Phillips  v.  Bignell,  1  Phill.  Rep. 

bishop  of  Canterbury  v.  Wells,  1  Salk.  239.    Myddleton  v.  Rushout,  ibid.  224. 

251.  (r)  4  Burn.  Eccl.  L.  266.    • 

(n)  4  Burn.  Eccl.  L.  252.     Orr  v.  (s)  Reeves  v.  Freeling,  2  Phill.  56. 


within  thirty  days,  and  the  administrator  must  settle  his  accounts  within  one  year.  And 
the  bond  of  the  administrator  is  forfeited  unless  there  be  a  literal  compliance  with  the 
words  of  the  act.  C'omm.  v.  Bryan,  8  Serg.  bi  Rawle,  128.  Campbell,  Better,  &c.  v. 
Adcock,  stated  8  Serg.  &  Rawle,  132. 


CHAP.  I.]  OF  THE  INVENTORY.  250 

fice,  in  every  case  to  see  that  the  effects  are  carefully  appraised,  and 
reduced  into  an  inventory,  not  only  because  he  may  be  cited  here- 
after to  produce  it,  but  also  because  a  distinct  and  accurate  knowledge 
of  the  fund  is  necessary,  as  will  more  clearly  appear  from  the  sequel 
of  this  work,  to  direct  him  in  the  safe  execution  of  the  trust.  In- 
deed, if  a  party  administer  without  making  an  [251]  inventory,  the 
law  will  suppose  him  to  have  assets  for  the  payment  of  all  the  debts 
and  legacies,  unless  he  repel  the  presumption ;(1)  whereas  if  he  make 
an  inventory,  he  shall  not  be  presumed  to  have  more  effects  of  the 
deceased  than  are  comprised  within  it,  and  the  proof  of  any  omis- 
sion is  then  thrown  on  the  opposite  party(5).(2) 

But  it  is  not  necessary,  according  to  the  modern  practice,  that  the 
appraisement  and  inventory  should  be  made  exactly  pursuant  to  the 
letter  of  the  statute.  If  the  effects  appear  to  have  been  appraised 
fairly,  and  by  persons  of  repute,  and  reduced  into  an  inventory,  such 
inventory  shall  obtain  credence,  unless  it  be  falsified  by  the  adverse 
party(/).  And  an  inventory  may  be  dispensed  with  altogether,  if 
it  shall  appear  clearly  to  the  court  to  be  unnecessary (t^).  As,  where 
A.  died  possessed  of  a  large  personal  estate,  and  appointed  his  eldest 
son  executor;  and,  among  other  bequests,  gave  his  second  son  two 
thousand  pounds,  to  be  paid  at  three  several  payments:  the  second 
son  cited  his  elder  brother  before  the  judge  of  the  prerogative  court 
where  the  will  was  proved,  in  order  to  compel  him  to  bring  in  an 
inventory;  but  it  appearing  that  the  two  first  payments  had  been 
made,  and  the  third  had  been  tendered,  the  judge  decided,  that  there 
was  no  need  of  an  inven[252]tory  at  the  instance  of  the  plaintiff;  and 
the  sentence  was  affirmed  by  the  delegates,  first  on  appeal,  and  af- 
terwards on  a  commission  of  review(w). 

On  the  other  hand,  the  judge  will,  in  special  cases,  at  the  instance 
of  a  party  interested,  decree  an  inventory  to  be  exhibited  by  the  ex- 
ecutor or  administrator,  before  the  issuing  of  the  probate  or  letters  of 
administration,  under  seal;  and  such  inventory  must  also  be  sub- 
stantiated by  a  special  oath(z^;).  Also,  under  particular  circumstan- 
ces, before  the  granting  of  the  probate,  or  letters  of  administration, 
the  court  will,  on  the  petition  of  a  party  interested,  instead  of  re- 
quiring such  inventory,  issue  a  commission  for  the  appraisement  and 
valuation  of  the  goods,  rights,  and  credits,  and  inspection  of  the  bo<ids, 
leases,  and  other  writings  relative  to  the  personal  estate  of  the  de- 

(s)  4   Burn.    Eccl.    L.  265,    26G.         (n)  Boone's  case,  Raym.  470. 
Swiiib.  p.  6,  s.  6.  (w)  4  Burn.  Eccl.  L.2G6.  1  Ought. 

(/)  Ibid.  1  Ought.  344.  344. 

(m)  Ibid.  265. 


(1)  Leeke^a  Adm.  v.  Beanes,  SHarr.  &  Johns.  ^73,  contra. 

(2)  In  Penns}lvania,  it  is  made  the  duty  of  every  executor  or  administrator  to  cause  a 
just  appraisement  to  he  made  of  tlic  goods,  chattels  and  credits  of  tlie  decedent  by  two  ap- 
praisers.   Act  of  March  15th,  1832,  sect. '20.  (Pamph.  Laws,  p.  142.) 


252  O^  THE  INVENTORY.  [bOOK  III. 

ceased,  at  his  house,  or  elsewhere,  on  the  day   specified,  with  such 
continuation  of  time  and  place  as  may  be  necessary  (ar). 

In  cases  of  this  nature  there  also  usually  issues  a  monition  to  the 
other  party  in  special,  and  to  all  others  in  general,  with  whom  any 
of  such  effects  of  the  deceased  remain,  requiring  them  to  exhibit 
the  same  to  the  appraisers  under  such  commission,  at  the  time 
[253]  and  place  appointed  for  its  execution,  in  order  that  they  may 
be  appraised  and  inserted  in  the  inventory (;y). 

And  on  such  commission  being  duly  executed,  the  inventory 
shall  be  brought  in  and  exhibited,  signed  by  the  hands  of  the  ap- 
praisers, or  two  of  them  at  the  least,  but  without  the  oath  of  the 
party  (-). 

In  such  a  case,  also,  an  inventory  is  often  required  on  the  execu- 
tor's or  administrator's  oath,  of  such  goods  of  the  deceased  as  have 
been  already  disposed  of(tf).  But  after  an  inventory  is  exhibited,  a 
creditor  cannot  impeach  it  in  the  ecclesiastical  court;  for  the  stat.  21 
Hen.  8.  which  requires  an  executor  or  administrator  to  make  an  in- 
ventory, enjoins  him  only  to  deliver  it  on  oath  into  the  keeping  of 
the  ordinary;  and  the  ordinary  is  bound  to  receive  the  same  on  its 
being  so  presented(6). 

Yet  a  creditor  may  state  objections  to  the  inventory,  which  the 
party  is  bound  to  answer  upon  oath;  but  no  evidence  is  admissible  to 
contradict  the  answer.  If  the  creditor  be  still  dissatisfied,  he  may 
have  recourse  to  equity  for  more  effectual  relief(c).  But  where  a 
creditor  gave  in  an  allegation,  pleading  an  omission  in  the  inventory,  to 
which  the  executrix  put  in  a  declaration  instead  of  a  specific  answer, 
the  court  held  that  such  creditor  was  entitled  to  have  a  constat  of  the 
assets  that  had  come  to  her  hands;  and  admitted  the  allegation(c/). 

[254]  By  the  custom  of  London,  if  any  man,  or  woman,  free  of 
the  city,  die,  leaving  an  orphan  within  age,  and  not  married,  the 
mayor  and  aldermen  may  compel  the  executor,  or  administrator,  to 
appear  at  a  court  of  orphanage,  and  exhibit  an  inventory.  And  in 
case  any  debt  appear  to  be  outstanding,  to  give  security  to  the  cham- 
berlain to  render  upon  oath  a  true  account  of  the  same  when  receiv- 
ed; and  on  his  refusal  may  commit  him  till  compliance.  Nor  shall 
his  having  given  security  to  the  spiritual  court,  as  above-mentioned, 
release  him  from  the  obligation  of  the  custom (e). 

fa:^  4  Burn.  Eccl.  L.  266.    1  Ought,     v.   Ovington,   Bur.   1922.     Hinton  v. 

344.  Parker,  8  Mod.  168.     2  Fonbl.  418, 
rw")  4  Burn.  Eccl.L.266.    1  Ought,      note  ((/). 

344,345.  (c)  2  Fonbl.  418,  note  (J). 

(£)  4  Burn.  Eccl.  L.  267.    1  Ought.         (rf)  Barclay  v.   Marshall,  2  Phill. 

345.  Rep.  188. 

(a)  4  Burn.  Eccl.  L.  267.  1  Ought.  (e)  Com.  Dig.  Guardian,  G.  1.  1 
345.  Roll.  Abr.  550.  Luck's  case,  Hob.  247. 

(6)  4Bum.  Eccl.  L.  267.  Catchside 


CHAP.  I.]        OF  COLLECTING  THE  EFFECTS.  254 

Sect.  III. 
Of  his  collecting  the  effects. 

The  next  duty  of  the  executor,  or  administrator,  is  to  collect  all 
the  goods  and  chattels  so  inventoried.  For  that  purpose,  the  law  in- 
vests him  with  large  powers  and  authority.  As  representative  of 
the  deceased,  we  have  seen,  he  has  the  same  property  in  the  effects 
as  the  principal  had  when  living;  he  has  also  the  same  remedies 
[255]  to  recover  them(«).  Within  a  convenient  time  after  the  testa- 
tor's death,  or  the  grant  of  administration,  he  has  a  right  to  enter  the 
house  descended  to  the  heir,  in  order  to  remove  the  goods(6),  pro- 
vided he  do  so  without  violence;  as,  if  the  door  be  open,  or  at  least 
the  key  be  in  the  door;  and,  although  the  door  of  entrance  into  the 
hall  and  parlour  be  open,  he  cannot  therefore  justify  forcing  the  door 
of  any  chamber  to  take  the  goods  contained  in  it;  but  is  empowered 
to  take  those  only  which  are  in  such  rooms  as  are  unlocked,  or  in 
the  door  of  which  he  shall  find  the  key.  He  has,  also,  a  right  to  take 
deeds  and  other  writings  relative  to  the  personal  estate  out  of  a  chest 
in  the  house,  if  it  be  unlocked,  or  the  key  be  in  it;  but  he  has  no 
right  to  break  open  even  a  chest. .  If  he  cannot  take  possession  of  the 
effects  without  force,  he  must  desist,  and  resort  to  his  action(c).  On 
the  other  hand,  if  the  executor  or  administrator  on  his  part  be  remiss 
in  removing  the  goods  within  a  reasonable  time,  the  heir  may  dis- 
train them  as  damage  feasant(£/). 

The  executor  has  also  a  right,  on  producing  the  probate  at  the 
bank,  and  causing  so  much  of  it  as  relates  to  the  testator's  interests 
[256]  in  the  several  stocks  to  be  entered  in  the  proper  offices  accord- 
ing to  the  acts  of  parliament  which  regulate  this  species  of  property, 
to  have  the  same  transferred  from  the  testator's  name  into  his  own, 
or  to  such  person  as  he  shall  appoint;  and  even  in  the  case  of  a  spe- 
cific bequest  of  stock,  the  executor  is  entitled  to  call  upon  the  bank 
for  a  transfer,  and  on  their  refusal,  they  are  subject  to  an  action  at 
his  suit.  It  is  personal  property,  and  subject  to  all  its  incidents(e). 
The  administrator  has  the  same  right  on  producing  the  letters  of  ad- 
ministration. 

The  executor  or  administrator  has  likewise  authority  to  sell  or 
dispose  of  the  deceased's  effects,  and  convert  them  into  ready  money, 
to  answer  the  purposes  of  the  trust(/). 

(a)  2  Bl.  Com.  510.    Harg.  Co.  Lit.  vid.  Stodden  v.  Harvey,  Cro.  Jac.  204, 

209.                                                •  and  Harg.  Co.  Litt.  5G  b. 

(i)  Vid.  Harg.  Co.  Litt.  56  b.;  and  (e)  See  stat.  5  Wm.  &  Mary,  c.  20. 

supr.  46.  Tlie  JJank  of  E n<rland  v.  Moffat,  3  Bro. 

(c)  Off.  Ex.  92,  93.     U  Vin.  Abr.  Ch.  Rep.  260.     Vid.  also  Dougl.  521 
267.     Shep.  Touchst.  470.  (/)  2  Bl.  Com.  510.     llVin.Abr. 

(d)  Off.  Ex.  93.     Plowd.280,  281.  270.-    Humble  v.  Bill,  2  Vern.  445.    1 


256  OF  COLLECTING  THE  EFFECTS.        [bOOK  III. 

He  has  power  to  sell(^),  or,  as  it  has  been  held,  to  mortgage  terms 
of  years,  or  assign  mortgaged  terms(A),  and  to  dispose  of  any  of 
the  effects,  although,  as  it  seems,  specifically  given  by  the  will(i),  and 
even  in  satisfaction  of  his  own  private  debt(A').  (1)  Nor  when  he  has 
aliened  the  assets  can  a  creditor  follow  them  at  law;(2)  for  the  de- 
mand of  a  creditor  is  only  a  personal  demand  [257]  against  the  ex- 
ecutor in  respect  of  the  assets  come  to  his  hands,  but  no  lien  on  the 
assets.  Equity  will,  indeed,  follow  assets  on  voluntary  alienations  by 
collusion  with  the  executor;  but  if  the  alienation  or  pledge  be  for  a 
valuable  consideration,  unless  fraud  be  proved,  neither  law  nor  equity 
will  defeat  it;(3)  for  a  purchaser  from  an  executor  has  no  means  of 
knowing  the  debts  of  the  testator;  and  if  a  court  of  equity  on  the  sub- 
sequent appearance  of  debts  would  control  such  purchasers,  all  deal- 
ings with  executors  would  be  dangerous(/). 

An  executor  is  entitled  to  recover  by  action^  or  other  legal  re- 
medies, or  by  suit  in  equity,  whatever  pertains  to  such  personal  es- 
tate(w). 

He  is  also  empowered  to  redeem  such  chattels  as  the  deceased 
may  have  left  in  pledge(n). 

Temporary  administrators,  as  an  administrator  durante  absentia 
or  durante  minoritate,  or  pendente  lite,  have  not,  as  we  shall  here- 
after see,  so  unlimited  an  authority  to  sell  or  alienate  the  testator's 
property.  They  may  dispose  bona peritiira  from  necessity,  and  to 
prevent  an  irreparable  loss  to  the  estate;  and  on  the  same  principle 
they  may  maintain  actions  to  recover  the  debts  of  the  deceased(o). 
But  where  the  widow  of  an  intestate  delivered  goods  back  to  a  cre- 
ditor in  satisfaction  of  his  demand,  in  an  action  of  trover  by  the  law- 
ful administrator,  it  was  held,  that  such  creditor  could  not  protect  his 
possession,  upon  the  ground  of  such  delivery  having  been  made  by 

Bro.   P.  C.  71.     Paget  v.   Hoskins,  {k)  Nugent  v.  Gifford,  1  Atk.  463. 

Gilb.  Rep.  Eq.  113.     Nugent  v.  Gif-  Mead  v.  Ld.  Orrery,  3  Atk.  235.     Ja- 

ford,  1  Atk.  463.     Whale  v.  Booth,  4  comb  v.  Harwood,  2  Ves.  265.     Ewer 

Term  Rep.  625,  in  note.                         '  v.  Corbett,  2  P. Wms.  149,  note  2.  Vid. 

(^)Ewerv.Corbett,2P.Wms.l48.  2  Bro.  Ch.  Rep.  431. 

Burting  v.  Stonard,  lb.  150.     Barnard.  (/)  Nugent  v.  Gifford,  1  Atk.  463. 

78.     Elliot  V.  Merriman,  2  Atk.  41.  Mead  v.  Ld.  Orrery,  3  Atk.  237.  Crane 

Jacomb  v.  Harwood,  2  Ves.  265.  v.  Drake,   2  Vern.  616.     M'Leod  v. 

(A)  Nugent  V.  Gifford,  1  Atk.  463.  Drummond,  14  Ves.  jun.  353;   and  S. 

Mead  v.  Ld.  Orrery,  3  Atk.  235.  Sed.  C.  17  Ves.  jun.  152. 

vid.  Bonny  v.  Ridgard,  cited  2  Bro.  Ch.  (m)  Vid.  supr.  157. 

Rep.  438.  (n)  Vid.  supr.  164. 

(«■)  Ewerv.  Corbett,  2  P.  Wms.  148.  (o)  Vid.  supr.  404,  and  Walker  v. 

Vid.  2  Bro.  Ch.  Rep.  431,  Woollaston,  2  P.  Wms.  584. 


(1)  WatkiTis  V.  Cheek,  2  Sim.  and  Stu.  Rep.  205.  Contra,  Graff  v.  Castlenum  et  al. 
5  Rand.  Rep.  195.  Dothon  v.  Simpson,  2  Rand.  Rep.  294.  And  see  Field  v.  ScMeffelin, 
7  Johns.  Rep.  157.     Petriev.  Clark,  11  Serg.  8c  Rawle,  377. 

(2)  11  Serg.k  Rawle,  385. 

(3)  Knight  V.  Yarbarough,  4  Rand.  Rep.  567.  Sutherland  v.  Brush,  7  Johns.  Cha. 
Rep.  17. 


CHAP.  I.]  OF  COLLECTING  THE  EFFECTS.  257 

one,  who  had  by  such  intermeddling  made  hevseU  executrix  de  son 
tori;  no  fact  appearing  to  give  colour  to  her  having  acted  in  that  re- 
spect in  the  character  of  executrix,  except  the  single  act  of  wrong 
complained  of,  in  which  the  defendant  participated(  jo). 

(j3)  Mountford  v.  Gibson,  4  East.  441. 


258  OP  DEBTS  DUE  TO  THE  CROWN.       [bOOK  III. 

[258]  CHAPTER  II. 

OF  HIS  PAYMENT  OF  DEBTS  IN  THEIR  LEGAL  ORDER. 

Sect.  I. 

Of  debts  due  to  the  croivn  by  record  or  specialty. — Of  certain 
debts  by  ]jarticular  statutes. 

The  disposition  of  the  property  when  thus  collected,  and  which 
constitutes  assets,  is  next  to  be  discussed.  And,  first,  I  shall  treat  of 
the  application  of  the  assets  in  the  order  prescribed  by  law.  He 
must,  in  the  first  place,  pay  all  funeral  charges,  and  the  expences  of 
proving  the  will,  or  of  taking  out  letters  of  administration(a).  Se- 
condly^  he  must  pay  the  debts  of  the  deceased,  and  in  such  payment 
he  must  be  careful  to  observe  the  rules  of  priority:  for,  if  he  pay 
those  of  a  lower  degree  first,  on  a  deficiency  of  assets  he  must  answer 
those  of  a  higher  out  of  his  own  estate(6).  (1 )     But  if  there  be  a  suf- 

(a)2Bl.Com.  511.  Off.  Ex.  130,131.         {b)  2  Bl.  Com.  511.  Shep.  Touchst. 


(1)  "  All  debts  owing  by  any  person  witliin  this  state,  at  the  time  of  his  or  her  decease, 
shall  be  paid  by  his  or  her  executors  or  administrators,  so  far  as  they  have  assets,  in  the 
manner  and  order  following:  ^r*<,  physic,  funeral  expenses,  and  servants'  wages;  second, 
rents,  not  exceeding  one  year;  t/u?'cl,  judgments;  fourth,  recognizances;  Jifth,  bonds  and 
specialties;  and  all  other  debts  shall  be  paid  without  regard  to  the  quality  of  the  same,  ex- 
cept debts  due  to  the  commonwealth,  which'shall  be  last  paid;  but  if  there  shall  not  be  as- 
sets enough  to  discharge  and  pay  such  bond  and  specialties  and  other  debts,  then,  and  in 
such  case,  the  same  shall  be  averaged,  and  the  said  creditors  paid  pi'o  rata,  or  an  equal 
sum  and  proportion  in  the  pound,  so  far  as  the  assets  will  extend,  first  paying  the  bonds 
and  specialties  aforesaid;  for  which  purpose  the  executors  or  administrators  of  such  de- 
ceased person  shall  or  may  apply  to  the  Orphans'  Court  of  the  proper  county,  which  is 
hereby  empowered  to  appoint  three  or  more  auditors,  to  settle  and  adjust  the  rates  and 
proportions  of  the  remaining  assets  due  and  payable  to  such  respective  ci-editors  accord- 
ingly: Provided,  Jievertheless,  That  no  creditor  who  shall  neglect  to  exhibit  his  account 
to  the  executors  or  administrators,  within  twelve  months  after  public  notice  given  in  one 
or  more  of  the  public  newspapers  published  in  this  state,  and  continued  in  such  public 
newspapers  for  foui*  weeks,  shall  be  entitled  to  receive  any  dividend  of  such  remaining  as- 
sets." Act  of  19th  April,  1794,  s.  14.  (Purd.  Dig.  376.3 Dall.  Laws,  521.  3  Sm.  Laws,  143.) 

Under  this  act  it  has  been  decided,  that  the  order  of  payment  of  the  debts  due  by  a  de- 
cedent is  according  to  the  nature  of  the  debt  at  the  time  of  his  decease,  which  nature  is 
not  changed  by  obtaining  a  judgment  against  his  executor  or  administrator.  Wootering 
V.  Sterwart''s  Adm.  2  Yeates,  483.  Prevost  v.  JVicholh,  4  Yeates,  479,  Scott  v.  Ramsay, 
1  Binn.  221. 

"  Physic"  before  the  passage  oiF  the  act  of  the  7th  April,  1830  (Pamph.  Laws,  347.  Purd. 
Dig.  416),  by  which  the  meaning  of  it  was  declared  to  be  "  medicine  and  attendance  of 


CHAP.  II.]       OF  DEBTS  DUE  TO  THE  CROWN.  258 

ficiency  of  assets  for  payment  of  debts,  he  may  pay  simple  contract 
debts  not  bearing  interest  before  specialty  debts  bearing  interest,  if 
not  objected  to  by  the  specialty  creditors,  and  the  legatees  are  not  at 
liberty  to  complain  of  the  order  of  payment  [259](6).  The  more 
clearly  to  trace  the  order  which  the  law  prescribes  for  the  payment 
of  debts,  and  which  the  executor,  or  administrator,  is  thus  bound  at 
his  peril  to  observe,  it  is  necessary  to  consider  them  under  a  variety 
of  classes. 

They  are  distinguished,  then,  first,  into  debts  due  to  the  crown  by 
record  or  specialty:  secondly,  certain  debts  created  by  particular 
statutes:  thirdly,  debts  of  record  in  general:  fourthly,  debts  due  by 
specialty:  fifthly,  debts  due  by  simple  contract,  first,  to  the  king;  and, 
secondly,  to  a  subject. 

To  all  other  debts,  of  whatever  nature,  as  well  of  a  prior  as  of  a 
subsequent'date,  such  as  are  due  to  the  crown  by  record  or  specialty 
claim  the  precedence,  (c).(l) 

(6)  Turner  V.  Turner,  lJac.&  Walk.  Off.  Ex.  133.  Littleton  v.  Hibbins, 
Rep.  39.  Cro.  Eliz.  793.    Com.  Dig.  Adnion.  C. 

(c)  11  Vin.  Abr.  295,  5  Bac.  Abr.  79.      2.     Erby  v.  Erby,  1  Salk.  80. 


physicians  dui-ing  the  lastilhiess  of  such  deceased  persons"  was  decided  to  include  medi- 
cal services  rendered  to  the  decedent,  or  his  family,  and  for  which  in  his  lifetime  he  was 
liable,  and  was  not  confined  to  those  rendered  in  the  last  illness  of  the  decedent  himself. 
Bond's  Case,  Orph.  Ct.  Phila.  County.  MS.  Hallo-well,  Prest.  diss.  Rouse  v.  Koontz's 
Adm.  17  Serg.  k.  Rawle,  3'28.  The  statute  of  limitation,  however,  is  a  bar  to  all  the 
items  of  a  physician's  bill  beyond  six  years  from  the  party's  death.  17  Serg.  &  Rawle, 
332. 

Under  the  description  of  "Servants,"  those  persons  only  are  included  who  form  part 
of  a  family,  and  are  employed  to  assist  in  the  economy  of  the  house,  or  its  appurtenan- 
ces, and  not  labourers  or  workmen.  Ex  parte,  Meason,  5  Binn.  167.  A  bar-keeper  in 
a  tavern  has  been  held  to  be  a  "  servant"  within  the  meaning  of  the  act.  Boniface  v.  Scott, 
3  Serg.  &  Rawle,  351.  Therightof  a  servant  to  the  priority  is  extinguished  by  having  taken 
from  the  deceased  debtor  a  single  bill  payable  at  a  future  day,  with  interest.  Silvei^  v. 
WilUams,  17  Serg.  &;  Rawle,  292. 

(1)  The  ffth  section  of  the  act  of  Congress  of  March  3d,  1797  (Ingersoll's  Abr.  561. 
Famph.  Laws,  vol.  3,  p.  423),  entitled,  "  An  act  to  provide  more  effectually  for  the  set- 
tlement of  accounts  between  the  United  States  and  receivers  of  public  money,"  provides, 
"  that  where  any  revenue  officer  or  other  person  hereafter  becoming  indebted  to  the 
United  States  by  bond  or  otherwise,  shall  become  insolvent,  or  where  the  estate  of  any 
deceased  debtor  in  the  hands  of  executors  or  administrators  shall  be  insufficient  to  pay  all 
the  debts,  the  debt  due  to  the  United  States  shall  be  first  satisfied."  And  the  duty  act  of 
the  2d  March,  1799,  c.  128,  s.  65  (Ing.  Abr.  156.  Pampli.  Laws,  vol.  4.  p.  386),  provides, 
"  that  in  all  cases  of  insolvency,  or  where  the  estate  in  tlie  liands  of  executors  or  adminis- 
trators or  assignees  shall  be  insufficient  to  pay  all  the  debts  due  from  the  deceased,  the 
debt  or  debts  due  (see  6  Peters's  Sup.  C.  Rep.  29)*1r-  United  States  on  any  such  bond,  or 
bonds,  sliall  be  first  satisfied;  and  any  executor,  administrator,  or  assignee,  or  other  per- 
son, who  shall  pay  any  such  debt  due  by  the  person  or  estate  for  whom  or  for  which  they 
are  acting,  previous  to  the  debt  or  del)ts  due  to  the  United  States  from  such  person  or  es- 
tate being  first  duly  satisfied  and  paid,  shall  become  answerable,  in  their  own  person  or 
estate,  for  the  debt  or  debts  so  due  to  the  UniU^d  Slates,  or  so  much  thereof  as  may  re- 
main due  and  unpaid,  in  the  proper  court  having  cognizance  thereof."  And,  "tliat  if 
22 


259  OF  DEBTS  DUE  TO  THE  CROWN.      [bOOK  III. 

Debts  secured  to  the  king  by  specialty  are  of  the  same  degree 
with  those  of  record:  for  by  the  stat.  33  H.  8.  c.  39,  it  is  enacted, 
that  all  obligations  and  specialties  taken  to  the  use  of  the  king,  sliall 
be  of  the  same- nature  as  a  statute  staple(c/).  The  king,  by  his  pre- 
rogative, is  to  be  preferred  before  other  creditors,  inasmuch  as  the 
law  regards  the  royal  I'evenue  as  of  more  importance  than  [260]  any 
private  interest(e).  Therefore,  an  executor,  whose  testator  was  in- 
debted by  matter  of  record  to  the  king,  may  plead  to  an  action 
brought  by  a  judgment  creditor,  or  any  other  creditor,  that  the  tes- 
tator died  thus  indebted  to  the  crown,  and  hath  not  left  assets  more 
than  to  satisfy  the  same,  and  such  pica  shall  be  valid;  but  the  defend- 
ant must  show  the  record  in  certain(y).      So  if  the  creditor  proceed 

{d)  OIT.  Ex.  134.  (/)  Off.  Ex.  134.     Com.  Dig.  Ad- 

(e)  3  13ac.  Abr.  79.     Off.  Ex.  133.        mon.  C.  2. 

the  principal  in  any  bond  which  shall  be  given  to  the  United  States  for  duties  on  goods, 
wares,  or  merchandize  imported,  or  otiier  penalty,  either  by  himself,  his  factor  or  other 
person  for  him,  shall  be  insolvent;  or  if  sucli  principal  being  deceased,  his  or  her  estate 
andeftects,  which  shall  come  to  the  hands  of  his  or  her  executors,  administrators  or  assign- 
ees, sliall  be  insufficient  for  the  payment  of  his  or  her  debts;  and  if  in  either  of  the  said 
cases  any  surety  on  the  said  bond  or  bonds,  or  the  executors,  administrators,  or  assignees 
of  such  surety,  sliall  pay  to  the  United  States  the  money  due  upon  such  bond  or  bonds, 
such  surety,  his  or  her  executors,  administrators,  or  assignees,  shall  have  and  enjoy  the 
like  advantage,  priority,  or  preference,  for  the  recovery  and  receipt  of  said  moneys  out  of 
the  estate  and  effects  of  such  insolvent  or  deceased  principal,  as  are  reserved  and  secured 
to  the  United  States;  and  shall  and  may  bring  and  maintain  a  suit  or  suits,  upon  the  bond 
or  bonds,  in  law  or  equity,  in  liis,  her,  or  their  name,  or  names,  for  the  recovery  of  all 
moneys  paid  thereon." 

The  preference  given  by  these  provisions  has  been  held  to  extend  to  debtors  to  the 
United  States ^e«era%,  and  includes  the  case  of  a  person  becoming  indebted  to  thenl  as 
the  indorser  of  a  bill  of  exchange  [The  U-  Slates  \.  Fisher,  2  Cranch,  358);  and  is 
founded  exclusively  on  the  actual  provisions  of  the  statutes  ( The  U.  States  v.  The  State 
Bank  ofJW  Carolina,  6  Peters's  Sup.  C.  Rep.  29);  but  the  priority  does  not  partake  of  the 
character  of  lien  on  the  property  of  public  debtors  {The  U.  States  x.  Fisher,  TheJJ. 
States  V.  Hooe,  3  Cranch,  90);  and  it  will  not  be  waived  by  proving  against  their  debtor 
under  a  commission  of  bankruptcy,  and  voting  in  the  choice  of  assignees  [Harrison  v. 
Sterrif,  5  Cranch,  289),  nor  can  any  agent  of  the  United  States  destroy  their  priority  by 
proving  their  debt  under  a  commission  of  bankruptcy  in  England,  voting  for  assignees, 
or  laying  an  attachment  against  the  property  of  the  bankrupts.  {Per  Curiam,  Bee's  Rep. 
246.) 

Though  the  priority  be  limited  to  certain  specified  cases  whilst  the  debtor  is  living,  it 
takes  effect  generally  upon  his  death  ( Comm.  v.  Lewis,  6  Binn.  266.  Dictum  oi  J\IarshaU, 
C.  J.,  2  Cranch,  390);  but  it  seems,  that  in  order  to  bind  an  executor  or  administrator , 
notice  is  necessary  of  the  debt  due  to  the  United  States,  or  no  devastavit  will  be  created 
by  his  making  payment  to  creditors  in  the  ordinary  course  of  business.  {Dictum  of  JMur- 
s'hall,  C.  J.     U.  States  v.  Fisher,  2  Cranch,  391.  n.     16  Johns.  Rep.  85.) 

The  right  of  the  surety,  who  pays  a  bond  to  the  United  States,  is  only  aright  to  receive 
payment  out  of  the  effects  of  the  principal,  as  fully  as  the  United  States  would  have  by 
reason  of  their  right  of  prioritj^;  and  therefore  where  the  principal  has  been  discharged 
under  a  bankrupt  or  an  insolvent  law,  he  may  plead  his  certificate  or  discharge  to  a  suit 
brought  against  him  by  such  surety,  although  the  United  States  would  not  have  been  bar- 
red thereby.  {ReedwEmerij,  1  Serg.  &  Rawle,  339.  Jlihin  v.  Dimlap,  16  Johns.  Rep.  77.) 


CHAP.  II.]       OF  DEBTS  DUE  TO  THE  CROWN.  260 

to  sue  out  execution,  on  a  statute-merchant,  or  staple,  the  executor,  on 
setting  forth  this  matter,  will  be  relieved  on  an  audita  querela[s;). 
But  the  debts  due  to  the  crown,  which  are  so  privileged,  must  be  such 
as  are  due  by  matter  of  record,  or  by  specially,  which,  as  we  have 
just  seen,  are  of  the  same  nature(A).  And,  therefore,  sums  of  money 
owing  to  the  king  on  wood  sales,  sales  of  tin,  or  of  other  his  minerals, 
for  which  no  specialty  is  given,  shall  not  be  preferred  to  a  debt  due 
to  a  subject  by  matter  of  record.  Hence,  though  fines  and  amerce- 
ments in  the  king's  courts  of  record  are  clearly  debts  of  record,  and 
entitled  to  such  preferments,  yet  amercements  in  the  king's  courts 
baron(^),  or  courts  of  his  honours,  which  are  not  of  record,  have  no 
such  priority;  nor  have  fines  for  copyhold  estates,  nor  money  arising 
from  the  sale  of  esU'ays  within  his  manors,  or  liberties:  for  these  are 
not  debts  of  record.  So  whatever  accrues  to  the  king  by  attainder, 
or  outlawry,  is  considered  as  a  debt  by  simple  contract  before  of- 
fice found;  and,  although  debts  due  to  the  person  outlawed,  or  attaint- 
[261]  ed,  be  by  obligation  or  other  specialty,  and  the  outlawry  or 
attainder  be  of  record,  yet  the  law  does  not  recognize  the  king's  title 
before  office  found:  for  till  then  it  does  not  appear  by  record  that  any 
such  debt  was  due  to  the  party(A^). 

So  if  the  king's  debtor  by  simple  contract  be  outlawed  on  mesne 
process,  the  debt  is  not  altered  in  its  nature,  nor  shall  it  have  prece- 
dence, as  if  the  oulawry  be  subsequent  to  the  judgment,  and  the  debt 
therefore  of  record(/).  Nor  does  the  prerogative  extend  to  a  debt  as- 
signed to  the  king.  Therefore  it  was  held,  where  the  obligee  of  a 
bood,  after  the  death  of  the  obligor,  assigned  it  to  the  king,  that  the 
obligor's  executors  were  warranted  in  satisfying  a  judgment  recov- 
ered against  him  in  his  lifetime  in  preference  to  the  bond(wi):  So 
also  the  arrears  of  rent  due  to  the  crown,  whether  it  be  a  fee-farm 
rent,  or  a  rent  reserved  on  a  lease  for  years,  shall,  it  seems,  be  re- 
garded in  the  light  of  a  debt  by  simple  contract(?i). 

Such  is  the  law  in  regard  to  debts  due  to  the  crown,  by  record,  or 
specialty. 

.  Next  in  order  are  certain  specific  debts,  which,  subsequently  to 
those  of  which  1  have  been  treatiffg,  are,  by  particular  statutes,  to  be 
preferred  to  all  others;  as  forfeitures  for  not  burying  in  woollen 
[262]  by  30  Car.  2.  c.  3:  money  due  for  letters  to  the  post-office  by 
9  Jinn.  c.  10:  and  money  due  from  the  overseers  of  the  poor  by  17 
Geo.  2.  c.  38(o). 

{g)  .3  Bac.  Abr.  79.     Off.  Ex.  135.  Erby,  1  Salk.  80.     11  Vin.  Abr.  291. 

(A)  3  Bac.  Abr.  79.    'Off.  Ex.   133.  (w)  Com.  Dig.  Admon.  C.  2.      11 

134.  Vin.  Abr.  301.     Lane,  G5. 

(t)  3  Bl.  Com.  25.  («)  3  Bac;  Abr.  80.     Off.  Ex.  135. 

(A)  3  Bac.  Abr.  80.     Off.  Ex.  134.  (o)  3  Bac.  Abr.  80,  in  note.     2  Bl. 

Com.  Dig.  Admon.  C.  2.  Com.  511.     4  Burn.  Eccl.  L.  301. 

(/)  Com.  Dig.  Admon.  C.  2.  Erby  v. 


262  OF  DEBTS  OF  RECORD.  [bOOK  III. 


Sect.  II. 

Of  the  debts  of  record  in  general. — Of  judgments;  and  herein 
of  decrees. — Of  statutes,  and  recognizances.  Of  docquetting 
judg7nents. 

To  these  succeed  debts  of  record  in  general,  of  which  there  are 
two  classes:  first,  judgments  in  courts  of  record;  and  secondly,  stat- 
utes and  recognizances.  The  former  arc  of  a  higher  nature  and  of 
a  greater  dignity  than  the  latter;  for  judgments  are  recovered  on  ju- 
dicial-proceedings in  litigated  cases,  and  in  a  regular  course  of  jus- 
tice; and  the  records  of  such  judgments  are  entered  on  public  rolls 
entrusted  to  the  custody  of  a  sworn  officer;  also  judgments  confessed 
by  the  testator  are  on  the  same  footing;  for  though,  in  point  of  fact, 
they  are  voluntarily  acknowledged,  yet  they,  as  well  as  other  judg- 
ments, are  presumed  to  have  been  given  adversely;  the  law  suppo- 
ses, quod  judicium  redditur  in  invitum{a). 

[263]  Hence  judgments,  as  well  such  as  were  recovered  against 
the  testator,  as  those  which  were  confessed  by  him,  are  in  a  prece- 
dent degi-ee  to  statutes  and  recognizances;  for  statutes  and  recogni- 
zances (of  the  nature  of  which  I  shall  more  fully  speak),  are  entered 
into  by  the  consent  of  the  parties;  the  former,  and  till  enrolment,  the 
latter,  are  carried  in  pockets,  or  deposited  in  escritoirs;  in  short,  are 
in  the  private  keeping  of  the  creditor  himself.  Nor  does  priority  of 
the  date  make  any  difllerence  in  favour  of  such  last-mentioned  secu- 
rities(d).  An  executor  is  obliged  to  discharge  a  later  judgment  in 
preference  to  a  statute,  or  recognizance,  prior  in  point  of  time(c). 

Such  is  the  preference  to  which  judgments,  as  distinguished  from 
the  more  private  records,  are  entitled.  Nor  is  this  privilege  con- 
fined to  judgments  in  the  courts  of  Westminster-hall,  but  extends  it- 
self to  judgments  in  all  other  courts  of  record;  that  is  to  say,  courtSi 
in  cities,  or  towns  corporate  having  power  by  charter,  or  prescription 
to  hold  plea  of  debt  above  forty  shilling,  as,  in  London,  Oxford,  and 
other  places:  for,  although  in  the  first  instance,  such  goods  only  can 
be  taken  in  execution  on  those  judgments  as  lie  within  the  jurisdic- 
tion of  those  respective  courts;  yet,  [264]  formerly,  if  the  record 
were  removed  into  the  chancery  by  certiorari,  and  thence  by  mit- 
timus into  one  of  the  superior  courts  of  law,  execution  might  have 
been  had  upon  the  defendant's  goods  in  any  county  in  England (c?); 
and  now  by  the  stat.  19  Geo.  3.  c.  70,  any  of  his  majesty's  courts  of 
record  at  Westminster  may,  on  a  proper  application,  cause  the  re- 

(a)  3  Bac.  Abr.  80.     Off.  Ex.  136.  Hob.  195.     11  Vin.  Abr.  293,  in  note, 

139.     Com.  Dig.  Admon.  C.  2.    Roll.  299.     2  Bl.  Com.  IGO.  341. 

Abr.  926.     Littleton  v.  Hibbins,  Cro.  (c)  Off.  Ex.    137,     Com.  Dig.  Ad- 

Eliz.  793.          ■  mon.  C.  2.     4  Co.  59, 60. 

(6)  4  Co.  60.  5  Co.  28.  Off.  Ex.  137.  (rf)  Off.  Ex.  139.  Swinb.  p.  6,s.  16. 


CHAP.  11.]  OF  JUDQMENTS. 


264 


cords  of  such  judgments  to  be  removed  thither,  and  may  issue  writs 
of  execution  against  the  persons  or  efiects  of  the  defendants,  in  the 
same  manner  as  on  judgments  obtained  in  those  superior  courts.  So 
a  judgment  in  d.pie])oudre  court,  which  is  a  court  of  record  incident 
to  every  fair  and  market,  and  is  the  lowest  court  of  justice(e)  known 
to  the  law  of  England,  claims  the  same  preference(/);(l)  and,  by 
the  above  statute,  its  process,  after  judgment,  shall  be  aided  in  the 
same  manner.  Nor  does  the  priority  of  a  judgment  in  any  degree 
depend  on  the  original  cause  of  action;  a  judgment  against  the  testa- 
tor on  a  debt  by  simple  contract  is  of  the  same  nature  as  a  judgment 
on  a  specialty(^).  So  if  the  testator  were  bound  in  a  recognizance, 
on  which  a  scire  facias  was  brought  and  judgment  given  against 
him  in  his  lifetime,  although  this  judgment  hQ  not  quod  recuperet,  ^s 
in  case  of  actions  on  debt,  but  qiiod  haheat  executionem,  yet  since 
execution  is  the  fruit  and  effect  of  all  judgments,  this  is  in  sub- 
[265]  stance  of  the  same  nature,  and  may  well  be  classed  as  a  debt 
by  judgment(/<). 

Nor,  as  between  one  judgment  and  another,  is  priority  of  time 
material.  The  judgment  creditor,  who  first  sues  out  a  scire  facias, 
must  be  preferred;  but,  before  such  writ  be  sued  out  the  executor  has 
it  in  his  election,  where  there  are  two  judgment  creditors,  to  pay 
which  of  them  he  pleases  first;  and  if  each  bring  a  scire  facias  on 
his  judgment,  yet  the  executor  may  confess  either  action,  at  his  op- 
tion, and  that  although  the  scire  facias  were  brought  by  the  one 
creditor  before  the  other(i).  So  where,  after  verdict  for  the  plain- 
tiff in  assumpsit,  and  before  the  day  in  bank,  the  defendant  died, 
and  judgment  was  entered  the  next  term,  pursuant  to  the  stat.  17  Car. 
2.  c.  8,  on  scire  facias  brought  against  the  executor,  it  was  held, 
that  the  judgment  should  by  relation  be  regarded  as  given  in  the  life- 
time of  the  testator,  and  be  payable  accordingly(A;).  But  where  the 
defendant  in  an  action  on  simple  contract,  after  an  interlocutory 
judgment,  died,  and  on  scire  facias  against  his  administrator,  a  writ 
of  inquiry  issued,  and  damages  assessed,  judgment  was  entered  up 
against  the  intestate;  the  court  inclined  to  the  opinion,  that  the  judg- 
ment, pursuant  to  the  stat.  8  &  9  W.  ^.  c.  \\,  [266]  ought  to  have 
been  entered  up,  not  against  the  intestate  himself,  but  against  the 
representative;  and  was  therefore  not  pleadable  by  the  administrator  to 

(e)  3  Bl.  Com.  32.  .  mon.  C.  2.      Vid.  also   Gomersal  v. 

(/•)  11    Vin.  Abr.  297.     Searle  v.  Aske,  Yelv.  133. 

Lane,2  Vern.  89.  (0  OIL  Ex.  138.   11  Vin.  Abr.  299. 

(^)  Vid.  3  Bl.  Com.  158.     11  Vin.  301.     2  Fonbl.  2d  edit.  401. 

Abr.  299.     Com.  Dig.  Admon.  C.  2.  {h)  Com.  Di<r.  Admon.  C.   11  Vui. 

Fitz.  7G.  Abr.  302.    Burnett  v.  Holden,  1  Lev. 

(A)  Off.  Ex.  139.     Com.  Dig.  Ad-  277.     1  Mod.  6.  vS.  C. 


(1)  .Judgments  obtained  before  a  justice  of  the  peace,  ami  filed  in  the  oflice  of  the  Com- 
mon Pleas  of  the  proper  county,  according  to  the  act  of  Assembly,  or  made  known  to  an 
administrator  before  he  has  paid  away  the  estate,  are  entitled  to  tiie  same  priority  as 
judgments  obtained  in  a  court  of  record.     Scott  v.  Ramsay,  I  IViim,  221. 


26G  OP  JUDGMENTS.  [bOOK  III. 

an  action  brought  against  him  on  a  bond(/).  In  like  manner,  where 
a  defendant  died  after  a  writ  of  inquiry  executed,  and  before  the  re- 
turn of  it,  it  was  adjudged  that  a  scire  facias  h\y  against  his  execu- 
tor, to  show  cause  why  the  damages  assessed  should  not  be  recover- 
ed(??^);  nor  in  such  case  shall  the  judgment,  if  on  simple  contract,  be 
preferred  to  a  debt  by  specialty. 

A  judgment  signed  at  any  time  during  the  term,  or  the  vacation 
immediately  subsequent,  relates  back  to  the  first  day  of  the  term, 
although  tlic  defendant  died  before  the  judgment  was  actually  signed; 
and  an  execution  tested  the  first  day  of  the  term  may  be  taken  out 
upon  it  against  his  goods(?i).(l)  But,  if  the  writ  of  execution  be 
not  tested  till  after  the  defendant's  death,  it  is  irregular,  and,  in  such 
case,  it  is  necessary  to  revive  the  judgment  by  scire  facias  against 
his  representative(o). 

If  a  judgment  be  kept  on  foot  merely  to  defraud  other  creditors, 
or  if  there  be  any  defeasance  of  it  in  force,  such  judgment  shall  not 
avail  to  preclude  them  from  their  debts(/?). 

[267]  A  judgment  quod  computet,  in  the  obsolete  action  of  ac- 
count, is  of  a  nature  too  incomplete  to  be  privileged  like  other  judg- 
ments(5'). 

A  judgment  in  a  foreign  country  is  regarded,  in  our  courts,  merely 
as  a  debt  by  simple  contract(r).(2) 

Nor,  as  we  have  just  seen,  are  judgments  against  an  executor 

(Z)  11  Vin.  Abr.   279.      Weston  v.  368.     Vid.  also  7  Term  Rep.  24. 

James,  1  Salk.  42.    Com.  Dig.  Plead.  (;;)  3  Bac.  Abr.  81.      Off.  Ex.  137. 

2  D.  9.  Iq)  1 1  Vin.  Abr.  297,  in  note.    Searle 

{m)    Goldsworthy   v.    Southcott,   1  v.  Lane,  2  Freem.   103.      Vid.  L.  of 

Wils.  243.  Ni.  Pr.  127. 

(?j)  Bragner  v.  Langmead,  7  Term  (r)  11  Vin.  Abr.  291.    2  Fonbl.  400. 

Rep.  20.  Dupleix  v.  De   lloven,  2  Vern.  540. 

(o)  Heapy  v.  Paris,  6  Term  Rep.  Walker  v.  Wiffer,  Dougl.  1. 


(1)  Leiper  v.  Levis,  Adm.  15  Serg.  &c  Rawle,  108.  Den  v.  Hillman,  2  Halst.  Rep.  180. 
Center  v.  BilUnghursi,  1  Cow;  Rep.  33.  But  a  judgment  creditor  of  an  insolvent  debtor 
cannot  gain  a  priority  over  other  judgment  creditors  by  taking  out  and  levying  on  his 
goods  a.  feri  facias  founded  upon  a  judgment  entered  after  the  debtor's  death,  and  which, 
as  well  as  the  execution,  has  relation  to  the  first  day  of  tlie  term  preceding  his  deatlu 
Leiper  v.  Levis,  Adm.     Wood  v.  Hopkins,  2  Penn.  N.  J.  Rep.  689. 

(2)  Hams  v.  Saunders,  6  Dowl.  &i  Ryl.  Rep.  471 .  4  Barn.  &  Cresw.  411 ;  in  which  it  is 
stated,  that  in  disti-ibuting  assets,  a  foreign  (i.  e.  Irisli)  judgment,  was  not  in  practice 
treated  as  an  English  judgment,  and  entitled  to  priority.  In  Pennsylvania,  however,  a 
judgment  obtained  in  anotlier  state,  and  made  known  to  executors  or  administrators,  is 
entitled  to  the  same  preference,  it  would  seem,  as  judgments  obtained  in  tlie  courts  of 
the  state.  Bond's  Case,  Orph.  Ct.  Piiila.  Co.  2d  Jan.  1823.  M.  S.  The  protection  of  the 
executor  or  administrator,  who  cannot  be  supposed  personally  bound  to  search  for  judg- 
ments in  any  other  place  than  the  records  of  the.  county  where  the  deceased  resided  and 
died,  is  to  be  found  in  the  provision  contained  in  the  I4th  section  of  the  act  of  19th  April, 
1792  (Purd.  Dig.  376),  authorizing  public  notice  to  be  given  to  ci-editors,  who  within 
twelve  months  after  such  notice  are  bound  to  exhibit  their  claims,  or  forfeit  their  claim 
to  any  share  of  the  assets. 


CHAP.  II.]  OF  JUDGMENTS.  267 

comprehended  within  the  same  class  as  those  which  are  recovered 
against  the  testator(5). 

In  case  a  scire  facias  he  brought  on  a  judgment  after  the  execu- 
tor has  exhausted  the  assets  in  the  discharge  of  such  of  the  king's 
debts  as  are  above-mentioned,  or  in  the  satisfaction  of  other  judg- 
ments, the  defendant  may  plead  generally,  that  he  hath  fully  admin- 
istered ;  and  on  that  plea  he  may  give  evidence  of  those  facts,  and 
that  will  be  a  sufficient  defence(/).  But  if  an  action  be  brought 
against  an  executor  on  a  specialty,  or  other  debt  of  an  inferior  na- 
ture, and  a  judgment  against  the  testator  remains  unsatisfied,  it  must 
be  pleaded  specially(w). 

It  is  held,  that  an  executor,  by  bringing  a  writ  of  error  on  a  judg- 
ment, may  postpone  to  a  statute,  and  the  satisfaction  of  the  [268]  debt 
on  the  statute,  pending  the  writ  of  error,  shall  be  no  devastavit, 
because  it  was  out  of  his  power  to  withstand  the  payment  of  it.  The 
effect  of  the  judgment  is  by  the  writ  of  error  totally  suspended(?;). 

But  if  no  writ  of  error  be  brought  on  the  judgment,  and  a  credi- 
tor by  statute  take  out  execution,  the  executor  is  iDound  to  avail  him- 
self of  his  remedy  by  audita  querela,  in  order  to  secure  a  fund  for 
the  satisfaction  of  the  judgment(?o) :  and  some  authorities  maintain, 
that  though  a  writ  oT  error  be  brought  on  a  judgment,  if  he  fail  to 
resort  to  an  audita  querela,  and  suffer  the  statute  to  be  executed,  it 
will  be  a  devastavit[x). 

Nor  is  an  executor  bound  to  take  notice  of  judgments  in  the 
Courts  of  King's  Bench,  Common  Pleas,  and  Exchequer,  unless 
they  are  docquetted,  that  is,  abstracted  and  entered  in  a  book,  pur- 
suant to  the  Stat  4  &  5  W.  ^  M.  c.  20(y).  According  to  the  true 
construction  of  that  act,  a  judgment  not  docquetted  is  put  on  a  level 
with  simple  contract  debts(2:).  If  the  executor  have  notice  of  the 
judgment,  although  not  docquetted,  he  may  perhaps  be  warranted 
[269]  in  giving  it  a  preference  as  a  judgment,  but  if  he  in  that  case 
pay  other  debts  first,  he  is  clearly  not  liable  as  on  a  devastavit; 
thus  to  charge  him  it  seems  that  no  other  than  the  prescribed  notice 
would  be  sufficient(a).  And  a  plea  of  plent  administ'ravit  to  an 
action  brought  on  such  a  judgment  will  be  supported  by  evidence 
of  payment  of  debts  by  specialty,  or  by  simple  contract(6). 

On  the  same  principle,  a  judgment  not  docquetted  according  to 
the  directions  of  the  statute  cannot  be  pleaded  to  an  action  on  simple 
contract(c). 

(.s)  OIT.  Ex.  138.  (w)  Off.  Ex.  137. 

(/)  Oir.'Ex.  138.  Vul.  also  Hickey  v.  \x)  Ibid.  137,  note.  Vid.  Bearblock 

Hayter,  G  Term  Rep.  388.     Sed.  vid.  v.  Read,  Oro.  Eliz,  822. 
3  Bac.  Abr.  80,  and  in  note.  (,y)  2  Bl.    Com.  397. 

(u)  Parker  v.  Atfield,  Ld.   Raym.  (z)  Ilickey  v.  Hayter,  administra- 

678.     S.  C.  Salk.  311.     2  Saund.  50.  trix,  6  Term  Rep.  3H1. 

iy)  11  Vin.    Abr.  292,  in  note.  ibid.  («)  Per  Lord  Kenyon,  C.  J.  ibid. 

298,  299,  in  note.     Bearblock  v.  Read,         (/;)  Ilickey  v.  Hayter,  6  Term  Rep. 

Cro.  Eliz.  822.     L.  of  Ni.  Pr.    142.  387,  .388. 
Yclv.  29.  (c)  Steel  v.  Roke,  Bos.  &  Pull.  307. 


269  OF  DECREES  IN  EQUITY.  [bOOK  III. 

But  of  such  judgments,  when  docquctted,  an  executor  shall  he 
presumed  to  have  cognizance(r/). 

The  provisions  of  the  statute  do  not  extend  to  judgments  in  infe- 
rior courts  of  record;  and  the  executor  is  still  bound  to  take  notice 
of  them  at  his  peril(e),  as  he  was,  before  that  act,  of  the  judgments  of 
the  courts  at  \Vestminster(y). 

A  decree  in  a  court  of  equity  is  in  respect  to  the  course  of  ad- 
ministering assets,  equivalent  to  a  judgment  at  law,  and  shall  stand 
[270]  in  the  same  order  of  payment(^).(l) 

In  general,  actual  and  express  notice  of  a  decree  is  necessary  to 
make  it  binding  on  purchasers.  Notice  by  implication  in  respect  to 
them  is  effectual  only  where  a  suit  is  depending.  It  never  was  the 
doctrine,  that  a  decree  after  a  cause  is  ended  shall  be  constructive 
notice  to  purchasers;(2)  but  it  is.  the  pendency  of  a  suit  that  creates 
such  notice  in  their  case,  on  the  ground  that  a  suit  is  a  transaction  in 
a  sovereign  court  of  justice,  and  every  man  is  presumed  to  be  atten- 
tive to  what  passes  there(A),(3)  and  also  on  the  policy  of  preventing 
the  transfer  of  rights  in  litigation.  But  an  executor  shall  be  affected 
with  implied  notice  of  a  decree  obtained  against  the  testator;  there- 
fore, where  an  executor  paid  a  debt  due  by  specialty,  before  a  debt 
due  by  a  decree,  of  which  he  had  no  actual  notice,  "iie  was  decreed  to 
pay  it  over  again  out  of  his  own  estate(«). 

Although  an  executor  cannot  plead  or  give  in  evidence  at  law(yt), 
a  decree  of  a  court  of  equity,  yet  he  shall  be  protected  and  indem- 

(rf)  2  Bac.  Abr.  83,innote.     Little-  Peploe   v.    Swiuburn,    Bunb.   48.     4 

ton  V.  Hibbins,  Cro.  Eliz.  793.  Vid.  Bro.  P.  C.  287.     See  also  2  Fonbl. 

Harman  v.  Harman,  3  Mod.  115.     11  412,  note  (s). 

Vin.  Abr.  274.  291.  (//)  2  Fonbl.  156,  note  (n).     Sorrell 

(e)    11    Vin.   Abr.  294.     Herbert's  v.  Carpenter,  2  P.  Wms.  482.     Garth 

case,  3  P.  Wms.147.     Off.  Ex.  139.  v.   Ward,   2   Atk.    174.     Worsley   v. 

(/)  Littleton  v.  Hibbins,  Cro.  Eliz."  Earl  of  Scarborough,  3  Atk.  392.  Wal- 

793.  ker  v.  Srnallvvood,  Ambl.  676. 

(g)  11  Vin.  Abr.  301.     3  Bac.  Abr.  (/)  3  Bac.  Abr.  81.    Bucele  v.  Atleo, 

81.     Shafto  V.   Powell,   3    Lev.  355.  '2  Vern.  37.    Searle  v.  Lane,  88.     Sor- 

Astley  V.  Powis,  1  Ves.  496.     Bligh  rell  v.  Carpenter,  2  P.  Wms.  483. 

V.  Earl  of  Darnley,   2  P.  Wms.  621.  (A-)   11  Vin.  Abr.  291.     Stasby  v. 

3  P.  Wms.  401,  note  (F).     Morris  v.  Powell,  Freem.  333,  334. 
Bankof  England, Ca.  Temp.  Talb.  217. 


(1)  11  Serg.  &  Rawle,  255.  But  a  decree  of  the  Orphan's  Coui-t  confirming  the  settle- 
ment of  an  administration  account,  from  which  a  balance  appears  to  be  in  the  hands  of  aa 
executor,  does  not  possess  the  character  of  a  judgment  or  decree  in  equity,  so  as  to  entitle 
the  person  to  whom  the  balance  is  due,  to  come  in  as  a  judgment  creditor  for  such  bal- 
ance, in  the  distribution  of  the  estate  of  such  executor,  he  having  died  after  the  decree, 
and  the  assets  in  the  hands  of  his  administrator  being  deficient.  Shaw  v.  M'Cameron, 
Adm.  11  Serg.  &  Rawle,  252. 

(2)  See,  however,  WatUngton  v.  H(rwley,  1  Desaus.  Rep.  170. 

(3)  Murray  v.  Jiallou,  1  Johns.  Cha.  Rep.  566.  Murray  v.  Finster,  Heaily  v.  Fimter, 
2  Johns.  Cha.  Rep.  155.  158.  Edmunds  w  Crenshaw  et  al.  1  M'Cord's  Cha.  Rep.  252. 
Walker  v.  Butz,  1  Yeates,  574. 


CHAP.  II.]  OF  RECOGNIZANCES.  271 

[271]nified  in  paying  due  obedience  to  such  decree,  and  all  legal 
proceedings  against  him  shall  be  stayed  by  injunction(/). 

But  if  the  decree  be  not  conclusive  of  the  matters  in  question,  as 
if  it  be  merely  to  account,  and  do  not  ascertain  the  sum  to  be  paid, 
it  is  analogous  to  a  judgment  quod  computet  at  law;  and  that  is  no 
complete  judgment  till  the  account  be  stated.  Therefore  it  has  been 
holden,  that,  pendhig  a  bill  in  equity,  and  after  such  decree,  an  ex- 
ecutor may  pay  any  other  debt  of  a  higher  or  an  equal  nature,  in 
case  the  assets  be  legal,  although  he  has  no  power  of  so  doing  as 
against  a  final  decree(w^). 

Next  in  rank  to  judgments  are  recognizances  and  statutes(ri). 

A  recognizance  is  an  obligation  of  record;  it  may  be  entered  into 
by  the  party  before  a  court  of  record,  or  magistrate  duly  authorised, 
conditioned  for  the  performance  of  a  particular  act;  as  to  appear  at 
the  assizes,  to  keep  the  peace,  to  pay  a  debt,  or  the  like.  A  recog- 
nizance is  in  most  respects  like  another  bond.  The  chief  distinction 
between  them  is,  that  the  latter  is  a  creation  of  a  new  [272]  debt,  or 
an  obligation  de  novo;  the  former  is  an  acknowledgment  on  record 
of  a  prior  debt,  of  which  the  form  is:  "That  A.  B.  doth  acknowledge 
to  owe  to  our  lord  the  king,  to  the  plaintiff,  to  C.  D.  or  the  like,  the 
sum  of  ten  pounds,"  with  condition  to  be  void  on  performance  of 
the  thing  stipulated.  And  in  such  case,  the  king,  the-plaint^iff,  or 
C.  D.,  is  called  the  cognizee,  as  he  that  enters  into  the  recognizance 
is  called  the  cognizor.  This  instrument  being  either  certified  to,  or 
taken  by  the  officer  of  some  court,  is  authenticated  only  by  the  re- 
cord of  such  court,  and  not  by  the  party's  seal(o). 

Of  securities  by  statute  there  are  three  species;  statutes  merchant, 
statutes  staple,  and  recognizances  in  the  nature  of  statutes  staple; 
and  though  they  are  fallen  into  disuse,  yet  as  they  are  frequently 
alluded  to  in  argument,  especially  on  this  subject,  it  seems  necessary 
to  give  some  explanation  of  them(/?).  In  order  to  form  a  distinct 
notion  of  their  nature,  we  must  recur  to  different  acts  of  parliament. 

By  Stat.  13  E.  1.  called  the  statute  de  mer  cat  or  thus,  a  merchant 
is  empowered  to  cause  his  debtor  to  appear  before  the  mayor  of 
London,  or  before  some  chief  warden  of  a  city,  or  of  any  other 
town  which  the  king  shall  appoint,  or  before  other  sufficient  men 
[273]  chosen  and  sworn  thereto,  when  the  mayor  or  chief  warden 
cannot  attend,  or  before  one  of  the  clerks,  to  be  appointed  by  the 
king,  and  acknowledge  the  debt,  and  the  day  of  payment.  And 
the  recognizance,  that  is  such  acknowledgment,  shall  be  duly  en- 
tered by  a  clerk  on  a  double  roll,  of  which  one  part  shall  remain 

(/)3P.Wms.4I,note(F).     Hard-  (n)Off.Ex.  140.   2Blac.Com.511. 

ing  V.  Ed^e,  1  Vern.  143.     Morrice  Com.  Dig.  Admon.  C.  2.     Philips  v. 

V.  Bank  of  England,  Ca.  Temp.  Talb.  Echard,  Cro.  Jac.  8.  35. 

217.     4   Bro.   P.   C.  287.     Martin  v.  {<,)  2  Bl.  Com.  341. 

Martin,  1  Ves.  214.  {]>)  Vid.  2  Bl.  Com.  IGO.    2  Reeve's 

(rft)  Smith  V.  Haskins,  3  Atk.  385.  Hist.  Eng.  L.   IGO.  393.     4  Reeve's 

Worsley  v.  Earl  of  Scarbro',  3  Atk.  Hist.  Eng.  L.  253,  254.     Sull.  Lect. 

392.   Mason  v.  Williams,  2  Salk.  507.  155,156. 
11  Vin.  Abr.  297.     3  Bac.  Abr.  83. 
23 


273  OF  STATUTES.  [bOOK  III. 

with  the  mayor  or  chief  warden,  and  the  other  be  deposited  with 
the  clerks,  one  of  whom,  with  his  own  hand,  shall  write  an  obliga- 
tion, to  which  writing  the  seal  of  the  debtor  shall  be  affixed,  with 
the  king's  seal  provided  for  that  purpose;  which  seal  shall  be  of 
two  pieces,  of  which  the  greater  piece  shall  remain  in  the  custody  of 
the  mayor  or  the  chief  warden,  and  the  other  piece  in  the  keeping 
of  such  clerk;  and,  if  the  debtor  do  not  pay  at  the  day  limited,  the 
merchant  shall  again  appear  before  the  mayor  and  clerk  with  his 
obligation;  and  if  it  be  found  by  the  roll  or  writing,  that  the  debt 
was  acknowledged,  and  the  day  of  payment  expired,  then  the  statute 
prescribes  certain  steps  to  be  taken  for  the  recovery  of  the  debt. 
This  obligation  is  called  the  statute  merchant. 

In  regard  to  the  kind  of  statutes  secondly  above  mentioned,  the 
staple,  that  is  to  say,  the  grand  mart  for  the  principal  commodities 
and  manufactures  of  England,  was  by  the  stat.  27  E.  3.  held  in 
certain  trading  towns.  And  in  order  that  contracts  made  within  the 
same  might  be  more  effectually  enforced,  that  act  directs  a  course 
similar  to  a  statute  merchant,  and  enacts,  that  every  mayor  [274]  of 
the  staple  shall  have  power  to  take  recognizances  of  debts  arising  on 
such  contracts,  in  the  presence  of  the  constables  of  the  staple,  or  of 
one  of  them;  and,  that  in  every  staple  there  shall  be  a  seal  remaining 
in  the  custody  of  the  mayor,  under  the  seals  of  the  constables;  and 
all  obligations  which  shall  be  made  on  such  recognizances  shall  be 
sealed  with  that  seal.    Such  obligation  is  denominated  a  statute  staple. 

The  benefit  of  this  mercantile  transaction  is  extended  to  all  the 
king's  subjects  in  general,  by  virtue  of  the  stat.  23  //  8.  c.  6,  by 
which  it  is  enacted,  that  the  chief  justice  of  the  king's  bench,  and 
the  chief  justice  of  the  common  pleas,  and  in  their  absence  out  of 
term,  the  mayor  of  the  staple  of  Westminster,  and  the  recorder  of 
the  city  of  London,  jointly,  shall  have  full  power  and  authority  to 
take  recognizances  or  acknowledgments  of  the  king's  subjects  for 
the  payment  of  debts  according  to  a  form  specified;  and  that  every 
obligation  so  acknowledged  shall  be  sealed  with  the  seal  of  the  cog- 
nizor,  and  also  with  such  seal  as  the  king  shall  appoint  for  the  same, 
and  with  the  seal  of  one  of  such  justices,  and  be  subscribed  by  him, 
or  with  the  seals  of  such  mayor  and  recorder,  with  their  names  sub- 
scribed. The  statute  then  directs,  that  such  recognizance  shall  be 
duly  enrolled  in  a  manner  similar  to  the  statute  merchant,  and  pro- 
vides, that  in  default  of  payment  of  the  debt  contained  in  such  ol^i- 
gation,  the  cognizee  shall  have  the  same  advantages  in  every  respect 
as  in  the  case  of  an  obligation  by  statute  staple.  The  obligation 
[275]  pursuant  to  this  act  is  styled  a  recognizance  in  the  nature  of 
a  statute  staple. 

Such  are  the  three  species  of  statutes. 

Although  recognizances  are  entered  on  the  rolls  of  the  king's 
courts,  while  statutes  are  consigned  to  the  custody  of  the  party,  and 
hence  are  called  pocket  records(y),  yet  both  species  of  securities 

(y)  5  Co.  28  b. 


CHAP.  II.]       RECOGNIZANCES  AND  STATUTES.  275 

having  been  entered  into  voluntarily  and  privately,  are  regarded  as 
equal  in  their  nature,  and  payable  in  the  same  order(/').  Nor  is  it 
material  in  regard  to  payment  by  the  executor,  which  of  them  are 
prior  or  subsequent  in  point  of  date.  Therefore,  where  there  are 
many  cognizees,  he  may  prefer  a  subsequent  to  a  prior  statute  or  re- 
cognizance, for  they  all  equally  affect  the  personal  estate;  although, 
as  to  lands,  the  first  in  point  of  time  shall  have  the  preference(5). 

If  the  statute  or  recognizance  be  defeasanced  for  the  payment  of  a 
sum  of  money  at  a  day  certain,  although  the  day  be  not  arrived,  yet 
it  is  a  debt  of  the  same  class  with  other  statutes;  for  it  is  a  present 
and  immediate  duty  to  be  discharged  at  a  future  period(/).  So, 
where  a  testator  acknowledged  a  recognizance  in  the  nature  of 
[276]  a  statute  staple,  of  which  the  defeasance,  after  reciting  that 
the  testator  and  cognizee  as  his  surety  were  bound  in  an  obligation 
to  J.  S.  for  the  debt  of  the  testator,  with  a  condition  for  a  payment 
of  one  hundred  pounds  at  a  future  day,  provided  that,  if  the  testator, 
his  executors,  or  assigns  should  pay  the  one  hundred  pounds  to  J.  S. 
at  the  day,  the  statute  should  be  void;  it  was  held,  that  although  the 
day  of  payment  were  not  yet  come,  and  it  were  a  collateral  sum  to 
be  paid  to  a  stranger  to  the  statute,  and  not  to  the  cognizee,  and 
therefore  no  duty  to  him,  and  although  the  heir  of  the  testator  might 
possibly  pay  the  money  at  the  day,  yet  inasmuch  as  the  statute  was 
for  the  payment  of  a  certain  sum  of  money,  with  which  by  intend- 
ment the  executor  would  be  charged,  he  might,  although  before  the 
day  of  payment,  plead  the  statute  in  bar  to  an  action  of  debt  on  a 
bond(M).  But  if  the  testator  in  his  lifetime  enter  into  a  statute  for 
performance  of  covenants,  and  none  of  them  are  broken,  to  an  action 
of  debt  on  specialty  the  executor  cannot  plead  this  statute;  for  per- 
haps the  covenants  may  never  be  broken,  and  it  would  be  unreason- 
able to  allow  him  to  elude  a  just  debt  on  a  contingency  which  may 
never  happen(v).  So  if  it  be  for  payment  of  money  when  an  infant 
shall  come  of  age,  it  shall  be  no  bar  to  other  debts,  for  the  infant  may 
die  before  that  iime(w). 

[277]  If  a  statute  be  joint  and  several,  the  cognizee  may  elect  to 
sue  either  the  surviving  cognizor,  or  the  executor  of  him  who  is 
dead,  or  both  in  separate  actions.  If  it  be  joint  only,  the  survivor 
alone  is  liabie(a:). 

The  remedy  on  the  statute  is  more  expeditious  than  on  a  recog- 
nizance; since  execution  may  be  taken  out  on  a  statute  without  a 
scire  facias,  or  other  suit.  But  in  case  of  a  recognizance,  if  a  year 
pass  after  the  acknowledgment,  no  execution  can  be  sued  out  against 
the  party  without  a  scire  facias;  and,  in  case  of  his  death,  aUhough 

(r)  Off.  Ex.  140.  V.  SydnoT,  Cro.  Car.  362. 

(5)  Off.  Ex.  140.'  3  Bac.  Abr.  81.  (v)  3Bac.  Abr.81.  5  Co.  28.  Swinb. 

Roll.  Abr.  925.    Com.  Dig.  Admon.  C.  p.  6,  s.  16. 

2  Swinb.  p.  6,  s.  16.  {w)  Roll.  Abr.  925. 

(0  11  Vin.  Abr.  286.    1  Roll.  Rep.  (x)  U  Vin.  Abr.  288.     Rogers  v. 

405.     Vaugh.  104.  Danvers,  1  Mod.  165. 

(u)  11  Vin.  Abr.  286.     Goldsmith 


277  OF  DEBTS  BY  SPECIALTY.  [bOOK  III. 

a  year  be  not  elapsed,  yet  a  scire  facias  must  be  sued  out  against  his 
executor(y). 

If  a  scire  facias  be  sued  out  on  a  recognizance,  an  executor  shall 
not  defeat  it  by  a  voluntary  payment  of  a  debt  by  statute:  but  if,  be- 
fore judgment  on  the  scire  facias,  execution  be  sued  out  against  him 
on  the  statute,  it  shall  prevail(r). 

A  recognizance  not  enrolled  shall  be  considered  as  a  bond,  and 
payable  accor(lingly(<'/),  the  sealing  and  acknowledgment  of  it  sup- 
plying the  want  of  a  delivery. 

So  a  statute  not  regularly  taken  may  be  good  as  an  obligation(/;). 

[278]  Nor  are  other  inferior  dci)ts  of  record  to  i)e  forgotten;  as 
issues  forfeited;  fines  imposed  by  the  judges  at  Westminster,  or  at 
the  assizes;  by  the  justices  at  quarter  sessions;  by  commissioners  of 
sewers,  or  of  bankrupts,  or  by  stewards  of  leets,  and  the  like;  for  all 
these  are  debts  of  record,  and  so  payable  by  the  executor(c).  Of  all 
of  which,  as  well  as  those  by  recognizance  or  statute,  he  is  bound  to 
take  notice  at  his  peril(6/). 


Sect.  III. 

Of  debts  by  specialty^  and  herein  of  rent: — of  debts  by  simple 

contract. 

The  class  of  debts  next  in  succession  are  debts  by  special  con- 
tracts; as  for  rent,  and  also  on  bonds,  covenants,  and  other  instru- 
ments under  the  seal  of  the  party. 

Although,  in  regard  to  rent,  the  lessor  has  a  remedy  often  more 
efficacious  in  his  own  hands  by  distraining;  yet,  between  a  debt  by 
obligation,  and  a  debt  by  covenant  for  a  sum  certain,  or  for  dama- 
ges on  a  breach  of  covenant,  and  a  debt  for  rent,  there  is  no  dis- 
tinction of  rank:  they  are  all  debts  of  the  same  degree(a).  Nor 
[279]  does  it  make  any  difference  whether  the  rent  be  reserved  by 
lease  in  writing,  or  by  parol:  for  in  the  latter  case,  the  rent  arises 
equally  from  the  profits  of  the  land,  and  is  regarded  as  a  debt  by 
specialty.  Nor  is  the  nature  of  the  debt  changed  by  the  determina- 
tion of  the  lease:  the  contract  remains  in  the  realty,  although  the 
right  of  distress  be  gone(6). 

{y)  Off.  Ex.  140.  511.     Com.  Dig.  Admon.  C.  2.    Plu- 

(z)  Off.  Ex.  140,  in  note.     11  Vin.  mer  v.  Marchant,  3  Burr.  1384.     See 

Ahr.  299.     2  Anderson,  157,  pi.  87.  also  Gage  v.  Acton,  1  Salk.  320. 

(a)  Bothomly  v.  Lord  Fairfox,  1  P.  {b)  3  Bac.  Abr.  82.  96.     Newport  v. 

Wms.  334.     2  Vern.  750.  S.  C.  Godfrey,  3  Lev.  ^67.     S.  C.  2  Ventr. 

(6)  Cro.  Eliz.  Hollingworth  v.  As-  184.     Gage  v.  Acton,  Com.  Rep.  67. 

cue,  355,  461.  544.     2  Roll.  Abr.  149.  Stonehouse  v.  Ilford,  145.     Godfrey  v. 

(c)  11  Vin.  Abr.  278.     Off.  Ex.  118.  Newport.  Comb.  183.     11  Vin.  Abr. 

(d)  Bothomly  V.  Lord  Fairfax.  Vid.  289,  in  note.  Vid.  3  Bl.  Com.  II 
2  Vern.  750.  Stat.  8  Ann.  c.  14. 

(a)  Off.  Ex.  146.     2  Bl.  Com.  465. 


CHAP.  II.]  OF  DEBTS  BY  SPECIALTY. 


279 


But  it  is  necessary  to  consider  rent  as  distinguished  into  such  as 
hath  been  left  in  arrear  by  the  testator,  and  such  as  hath  accrued 
due  subsequently  to  his  death. 

For  rent,  which  was  in  arrear  in  the  testator's  lifetime,  the  exe- 
cutor is  liable  merely  in  that  character;  as  the  testator's  debt,  he  can 
be  sued  for  it  in  the  detinet  only,  and  to  such  action  may  plead  that 
he  has  fully  administered(c):  whereas,  for  the  subsequent  rent,  the 
executor  is  in  general  regarded  as  personally  responsible.  He  has 
no  right,  as  we  have  already  seen((/),  to  waive  the  term,  for  he  must 
renounce  the  executorship  in  tofo,  or  not  at  all;  and  if  he  entered  on 
the  demised  premises,  as  by  his  office  he  is  bound  to  do,  the  lessor 
may  charge  him  as  assignee  in  the  debet  and  detinet  for  the  rent  in- 
curred subsequently  to  his  entry(e). 

If  the  profits  of  the  land  exceed  the  amount  of  the  rent,  as  the 
[2S0]  \diW  2Jrimd  facie  supposes,  such  of  the  profits  as  are  sufficient 
to  make  up  the  rent  shall  be  appropriated  to  the  payment  of  the 
lessor,  and  cannot  be  applied  to  any  other  purpose.  Therefore,  if  in 
such  case  the  lessor  bring  an  action  against  the  executor  for  the  rent, 
he  cannot  plead  jjlene  administravit,  for  that  plea  would  confess  a 
misapplication  of  the  profits;  since  no  other  payment  out  of  them 
can  be  justified  till  the  rent  be  answered(/).  On  the  other  hand, 
the  profits  of  the  land  may  be  inadequate  to  the  rent.  In  a  variety 
of  cases,  they  may  be  easily  supposed  insufficient  for  a  given  period, 
although  the  lease  may  on  the  whole  be  beneficial.  As  in  respect  to 
rent  for  the  occupation  of  premises  from  Michaelmas  to  Lady-day, 
especially  where  almost  the  whole  profit  is  taken  in  the  summer;  as 
in  the  case  of  a  lease  of  tithes,  or  of  meadow  grounds,  which  are 
usually  flooded  in  the  winter(§-).  So  the  profits  for  a  series  of  years 
may  be  less  than  the  amount  of  the  rent,  although  the  lease  for  the 
whole  term  may  be  of  no  small  value;  as  in  the  case  of  a  lease  of 
woods,  which  are  fellable  only  once  in  eight  or  nine  years,  and  the 
felling  has  been  very  recent(A).  In  these  and  the  like  instances  the 
executor  is  personally  liable  only  to  the  extent  of  the  profits,  and  for 
such  proportion  of  the  rent  as  shall  exceed  the  profits  is  chargeable 
merely  in  the  capacity  of  executor,  or,  in  other  words,  as  far  only 
as  he  has  assets;  and  in  such  case,  to  an  action  brought  by  the  lessor 
against  him  in  the  debet  [281]  and  detinet,  he  must  disclose  the 
matter  by  special  pleading,  and  pray  judgment  whether  he  shall  be 
charged,  otherwise  than  in  the  detinet  only,  for  more  than  the  actual 
profits(2). 

Thus  the  profits  of  the  land  are  to  be  applied  by  the  executor,  in 
the  first  place,  to  the  discharge  of  the  rent,  and  if  that  fund  should 
prove  insufficient,  the  residue  of  the  rent  is  payable  out  of  the  gene- 

(c)  Lyddall  v.  Dunlapp,  1  Wills.  4.         (/)  nuckley  v.  Pirk,  1  Salk.  317. 
Com.  Dirr.  Adrnon.  13.  14.  (aO  OO".  Ex.  Hi). 

(d)  Supr.  143.  (A)  Ibid. 

(e)  JJillin^hurst    v.    Speerman,    1  («)  Buckley  v.  Pirk,  1  Salk.  317. 
Salk.  2^7.  317.     Off.  Ex.  147. 


281  OF  DEBTS  BY  SPECIALTY.  [bOOK  III. 

ral  assets,  and  stands  on  the  same  footing  with  other  dehts  by 
specialty. 

Debts  by  bond,  and  other  instruments  under  the  seal  of  the  party, 
are  of  the  same  class  with  debts  for  rent(^);  and  an  executor  is  bound 
to  pay  a  debt  on  specialty  before  a  debt  by  simple  contract.  But  in 
the  distribution  of  separate  property  of  a  married  woman  as  assets 
after  her  death,  a  bond  debt  is  not  entitled  to  priority,  for  the  bond 
merely  as  a  bond  is  void(/).  If  an  agreement  be  entered  into  under 
hand  and  seal  for  the  purchase  of  an  estate,  although  the  estate  on 
the  purchaser's  death  descend  to  his  heir  free  from  all  debts  by  sim- 
ple contract,  and  the  personal  assets  be  not  more  than  adequate  to 
pay  for  the  estate,  the  vendor  being  a  candidate  by  specialty,  may  at 
law  charge  the  purchaser's  executor  on  the  covenant  to  the  disap- 
pointment of  all  the  simple  contract  creditors(7/i.),  though  equity 
will  marshal  the  assets  in  their  favour(?i).  An  executor  is  also 
bound  to  pay  a  debt  on  specialty  before  a  debt  by  simple  contract, 
although  the  bond  be  not  yet  due.  For  the  obligation  is  a  present 
duty,  and  the  condition  is  but  a  defeasance  of  it(o).  Hence  it  hath 
been  adjudged,  that  if  an  action  be  brought  against  an  executor  on  a 
simple  contract  of  the  testator,  he  may  plead  that  his  testator  entered 
into  a  bond  payable  at  a  future  day,  and  it  shall  cover  assets  to  the 
amount  of  the  sum  payable  by  the  condition(/?).  But  if  the  testator 
die  indebted  to  A.  in  one  specialty,  and  to  B.  in  another,  and  of 
A.'s  debt  the  day  of  payment  is  past,  and  of  B.'s  debt  the  day  of 
payment  is  to  come,  the  executor  has  no  right  to  pay  B.  in  prefer- 
ence [282]  to  A.:  yet  if  A.  forbear  to  demand  or  sue  for  his  debt, 
till  the  debt  of  B.  become  payable,  then  it  is  in  the  election  of  the 
executor  to  pay  which  of  them  he  thinks  proper{q).  By  the  cus- 
tom of  London,  if  a  citizen  of  London  die  indebted  to  another  citi- 
zen by  simple  contract  made  within  the  city,  such  debt  is  equal  to 
a  debt  by  specialty,  and  the  payment  of  it  by  the  executor  shall 
be  binding  on  the  obligor  of  a  bond,  though  a  stranger  and  no 
citizen(r). 

In  the  administration  of  assets,  a  contingent  security,  as  for  exam- 
ple a  bond  to  save  harmless,  shall  not  stand  in  the  way  of  a  debt  by 
simple  contract(5).  And  if,  subsequently  to  the  payment  of  the 
simple  contract  debt,  the  contingency  should  happen,  it  seems  rea- 
sonable that  evidence  of  such  payment  should  be  admitted  on  the 


(k)  Off.  Ex.  146.       .  V.  Morrice,  Ca.  Temp.  Hard.  228. 

(/)  Anon.  18  Ves.  258.  (7)  Off.  Ex.  143.  Com.  Dig.Admon. 

(/w)  See  Brome  v.  Monck,  10  Ves.  C.  2.     Swinb.  p.  6,  s.  16. 
jun.  620,  621.  {r)  3  Bac.  Abr.  82.    Snellingv.  Nor- 

(n)  Vid.  supr.  417.  ton,  Cro.  Eliz.  409.     Noy.  53.     Roll. 

(0)  11  Vin.  Abr.  304.     Leon.  187.  Abr.  557.    5  Co.  82  b.  83.    Scudamore 

(/))  3  Bac.  Abr.  81.     Buckland  v.  v.  Hearne,  Andrew's  Rep.  340. 
Brook,    Cro.   Eliz.   315.      Lemun   v.  («)   11  Vin.   Abr.    395.     Lancy  v. 

Tooke,  3  Lev.  57.     Goldsmith  v.  Syd-  Fairechild,  2  Vern.  101.     Hawkins  v. 

nar,  Cro.  Car.  362.     Bank  of  England  Day,  Ambl.  160. 


CHAP.  II.]  OF  DEBTS  BY  SPECIALTY.  282 

executor's  plea  oi plene  administravit  to  an  action  by  the  specialty 
creditor(5). 

But  where  the  contingency  has  taken  place,  although  the  debt 
consequent  upon  it  has  not  yet  been  paid,  it  may  be  pleaded  to  an 
action  by  a  simple  contract  creditor:  as,  where  the  testator  had  exe- 
cuted a  bond  to  A.  in  two  thousand  eight  hundred  pounds,  condi- 
tioned to  indemnify  him  against  another  bond  for  eight  hundred 
[283]  pounds,  which  he  had  executed  jointly  with  the  testator  to  B. 
for  the  debt  of  the  testator,  in  whose  lifetime  the  eight  hundred 
pounds  had  become  due,  and  were  still  unpaid;  on  the  executrix's 
disclosing  these  facts  in  a  plea  to  an  action  of  assumpsit,  and  stating 
that  she  had  administered  all,  except  so  much  as  would  satisfy  such 
indemnity  bond,  it  was  held  to  be  a  sufficient  defence(^), 

A  bond  merely  voluntary  shall  be  postponed  to  simple  contract 
debts  which  are  bona  fide  owing;  but  such  bond,  if  not  to  the  pre- 
judice of  creditors,  must  be  paid  by  the  executor,  and  in  preference 
to  legacies.  For  a  bond,  however  voluntary,  transfers  a  right  in  the 
lifetime  of  the  obligor;  whereas  legacies  arise  from  the  will,  which 
takes  effect  only  from  the  testator's  death,  and  therefore  they  ought 
to  be  postponed  to  a  right  created  in  his  lifetime(w).  But  an  execu- 
tor has  no  authority  to  pay  a  bond  founded  on  an  usurious  contract, 
or  a  bond  ex  turpi  caiisd.  Such  payment  will  amount  to  a  devas- 
tavit, as  well  against  legatees  as  against  creditors(t'). 

If  there  be  a  joint  and  several  obligation,  an  executor  of  a  de- 
ceased obligor  may  pay  the  debt  out  of  the  estate  of  the  testator, 
[284]  and  plead  it  to  other  actions  by  creditors  or  specialties.  But 
if  the  obligation  be  joint  only,  there  the  survivor  must  be  charged 
out  of  his  own  estate,  and  the  executors  of  the  deceased  obligor  are 
not  liable  on  the  instrument(w;). 

A  demand  arising  from  a  covenant,  as  I  have  before  observed,  is 
of  the  same  nature,  whether  it  be  for  a  specific  sum,  or  whether  it 
sound  merely  in  damages(:c((l).  Thus  the  grantor's  covenant  in  a 
marriage  settlement  for  him  and  his  heirs,  that  the  premises  are  free 
from  incumbrances,  shall  rank  equally  with  debts  on  bond(y).  So, 
to  an  action  on  simple  contract  against  an  executor,  he  may  plead 
that  the  testator  entered  into  certain  covenants,  and  may  show  the 

(s)  11  Vin.  Abr.  307.     Allen,  40.  {v)  11  Vin.  Abr.  307.     Brownl.  33. 

Sed  vid.  Goldsb.  142.  Winchcombe  v.  Bisliopof  Winchester, 

{t)    Cox   V.  Joseph,  5  Term  Rep.  Hob.  1G7.     Robinson  v.  Gee,  1  Ves. 

307  254. 

(u)  11  Vin.  Abr.  304,  305.     1  Eq.  {w)  11  Vin.  Abr.  288.     Rogers  v. 

Ca.  Abr.  84.  143.     3  Bac.  Abr.  81,  82.  Danvers,  1  Mod.  1(35.     S.  C.  Freem. 

Cray  v.  Rooke,  Ca.  Temp.  Talb.  156.  Rep.  127. 

Loeffs  V.  Lewen,  Prec.  Ch.  370.  Croft  (x)   Plumer  v.   Marchant,  3  Burr. 

V.  Pyke,  3  P.  Wms.  182.     Lechmere  1380.     Freemoult    v.    Dedire,    1    P. 

V.  Earl  of  Carlisle,  ibid.  222.     Lady  Wms.  429. 

Cox's  case,  ibid.  339.   Lasselsv.  Lord  (y)  3  Bac.  Abr.  81.     11  Vin.  Abr. 

Cornwallis,  Finch.  Rep.  232.  292. 

(1)  Frazcr  v.  Tunis,  1  Binn.  254. 


284  OF  DKBTS  BY  SPECIALTY.  [bOOK  III. 

breach  of  them,  and  state  the  amount  of  the  damages  incurred,  and 
that  he  has  not  assets  more  than  to  satisfy  them:  the  plea  will  be 
oood,  although  the  damages  are  not  liquiclated(z).  But  where  the 
hushand  by  marriage  articles  having  agreed  to  settle  one  thousand 
five  hundred  j)oundsy;er  annum  on  the  issue,  made  a  deficient  set- 
tlement, and  devised  all  his  unsettled  estates  for  payment  of  debts,  it 
was  adjudged  in  equity,  that  as  the  settlement  was  of  less  than  the 
stipulated  value,  the  widow  and  infant  were  to  be  compensated  in 
damages;  but  that  as  the  articles  made  no  mention  [285]  of  any 
specific  land,  nor  contained  any  covenant  in  regard  to  its  value,  they 
were  to  come  in  after  creditors  by  bond(f/). 

If  A.  covenant  to  pay  a  sum  of  money,  and  die  before  payment, 
it  may  be  recovered  against  his  cxecutors(6):  whereas  it  has  been 
held,  that  if  he  covenant  that  his  executors  shall  pay  the  money, 
no  action  can  be  maintained  against  them,  on  the  principle  that  it 
could  not  be  a  debt  of  the  testator(c);  but  this  latter  case  is  of  very 
doubtful  authority,  for  there  also  the  testator  was  himself  bound, 
and  the  lien  falls  upon  his  representatives,  though  he  himself  could 
not  have  been  sued ;  and  it  seems  that  on  either  covenant  they  are 
equally  responsible(r/). 

Of  this  class  also  are  debts  by  mortgage,  and  although  there  be 
neither  bond  nor  covenant  for  the  payment  of  the  mortgage-money, 
yet  it  is  payable  out  of  the  personal  assets(e).(l)  But  if  such  debt 
be  paid  out  of  those  assets,  the  other  creditors,  as  well  by  specialty 
as  on  simple  contract,  and  even  legatees,  are,  in  case  of  a  deficiency 
of  that  fund,  entitled  in  equity  to  the  advantage  of  the  mortgage,  to 
the  extent  of  what  was  applied  in  discharge  of  it  out  of  the  personal 
estate(y). 

[286]  Last  in  the  order  of  payment  are  debts  on  simple  contract; 
as  on  bills  and  notes  not  under  seal,  and  verbal  promises(^),  or  such 
as  are  implied  in  law:  thus  where  A.  received  with  an  apprentice 
the  sum  of  two  hundred  and  fifty  pounds,  and  died  about  two  years 
afterwards,  having  employed  the  apprentice,  during  that  period,  in 
inferior  affairs,  the  executors  were  decreed  in  equity,  after  payment 
of  the  debts  by  specialty,  to  repay  the  money  as  a  debt  due  by  sim- 
ple contract,  deducting  at  the  rate  of  twenty  pounds  a  year  for  the 
maintenance  of  the  apprentice  during  the  time  he  lived  with  his 

(z)    11   Vin.  Abr.  305.     Smith  v.  Vern.  524.    Powel  on  Mortgages,  813. 

Harman,  6.  Mod.  144.  Howell  v.  Price,  1  P.  Wms.  291.  294. 

(a)  11  Vin,  Abr.  290,  305.     Whit-  King  v.  King,  3  P,  Wms.  358. 
church  V.  Bayntan,  2  Vern.  272.  (/)  Com.  Dig.  Chancery,  2  G.  4. 

{h)  Perrot  v.  Austin,  Cro.  Eliz.  232.  Fletcher  v.  Stone,  3  Vern.  273.     Wil- 

Sheph.  Epit.  990.  son  v.  Fielding,  ib.  763.     S.  C.  10 

(c)  11  Vin.  Abr.  276.  Perrot  v.  Aus-  Mod.  426.     Cope  v.  Cope,  Salk.  449. 

tin,  Cro.  Eliz.  232.  Vid.  Co.  Litt.  386.  and  vid.  infr. 

{d)  Ibid.  3  Burr.  183,  1384.  (  g)  2  Bl.  Com.  465,  466.  511.    Off. 

(e)  Vid.  Bristol  v.  Hungerford,  2  Ex.  155. 


(1)  Dandridge  v.  Minge,  4  Rand.  Rep.  39". 


CHAP.  II.]      OF  DEBTS  BY  SBIPLE  CONTRACT.  286 

master(A).  On  contracts  of  this  nature,  debts  due  to  the  king  shall, 
it  seems,  be  satisfied  before  debts  which  are  due  to  subjects(e);  the 
wages  also  of  domestic  servants  and  of  labourers  appear,  with  great 
reason,  entitled  to  a  preference;  but,  with  the  exception  of  these,  the 
executor  has  a  right  likewise,  in  this  species  of  debts,  to  prefer  in 
payment  whichever  he  pleases(/t). 

But  where  the  testator,  though  in  no  respect  indebted  to  his  bro- 
ther, had  signed  a  note  by  which  he  acknowledged  himself  indebted 
to  his  brother  in  5000/.,  and  always  kept  the  note  in  his  own  cus- 
tody, and  the  brother  knew  nothing  of  it  at  the  time  it  was  signed, 
and  at  the  testator's  death  it  was  found  among  his  papers,  it  was 
held  to  be  a  matter  merely  initiate  or  intended,  and  never  perfected, 
and  consequently  as  no  debt  at  all(/). 

With  regard  to  the  interest  of  debts:  on  a  judgment  subsequent 
interest  cannot  be  claimed,  but  it  may  be  recovered  in  an  action  on 
the  judgment(m).  Debts  by  specialty  are  payable  with  inter- 
est(7i).(l)  And  it  has  been  held,  that  even  on  demands  arising 
from  covenant,  although  not  liquidated,  and  sounding  only  in  da- 
[287]  mages,  interest  is  allowed (o).  But  interest  cannot  be  re- 
covered on  a  bond  beyond  its  penalty(7j).  Yet  to  that  extent  it 
may  be  recovered,  although  not  expressly  reserved (§').  In  respect 
to  interest  on  simple  contract  debts,  the  holder  of  a  bill  of  exchange 
or  of  a  promissory  note  is  entitled  to  recover  the  money  payable 
upon  it  with  interest(r)  in  some  cases  from  the  date  of  the  bill  or 
note(5);  but  in  general  from  the  time  at  which  it  ought  to  have  been 
regularly  paid  down  to  the  time  when  the  plaintiff  will  be  entitled 
to  final  judgment(/),  and  all  incidental  expenses  occasioned  by  non- 
acceptance,  or  non-payment(?^).  Thus,  on  a  bill  or  note  payable  on 
presentment,  interest  may  be  computed  from  the  presentment(t;). 
And  in  regard  to  all  other  debts  of  this  species,  it  is  the  constant 
practice,  either  on  the  contract,  or  in  damages,  to  give  interest  for 

(A)  Soan  V.  Bowden  &  Eyles,  M.  Bro.    Ch.   Rep.   496.     Grosvenor    v. 

30  Car.  2.     Ch.   Ca.  Temp.  Finch.  Cook,  Dig.  Rep.  305.     Sed  vid.  Lord 

396.     1  Bum.  Just.  85.  Lonsdale  v.  Church,  2  Term  Rep.  388. 

(i)  3  Bac.  Abr.  80,  in  note.  {q)   Tidd's  Prac.  B.  R.  484,  485. 

\k)  2  Bl.  Com.  511.     1  Roll.  Abr.  Farquhar  v.  Morris,  7  Term  Rep.  124. 

927.    11  Vin.  Abr.  274,  in  note.    Shep.  But  see  1  Bos.  &  Pul.  337. 

Epit.  986.     Shep.  Touchst.  478.  (r)  Bailey  on  Bills  of  Exch.  90,  91. 

(/)  Disher  v.  Disher,  1  P.  Wms.  Blaney  v.  Hendricks,  Bl.  Rep.  761. 

204.  Vid.  also  Bun.  119.   Auriol  v.  Thomas, 

(to)  Creuze  v.  Hunter,  2  Ves.  jun.  2  Term  Rep.  52. 

162,  165.  (,s)  Bailey  on  Bills  of  Exch.  91. 

(n)  Com.  Dig.  Chancery,  3  S.  1.  (<)  Robinson  v.  Bland,  Burr.  Rep. 

{o)    14    Vin.   Abr.   Interest,   C.  2.  1077. 

Fonbl.  424.     Sed  vid.  Sweetland  v.  («)  Bailey  on   Bills  of  p]xch.  91. 

Squire,  2  Salk.  623.  Auriol  v.  Thomas,  2  Term  Rep.  52. 

{p)  Creuze  v.  Hunter,  2  Ves.  jun.  {v)  Blaney  v.  Hendricks,  Bl.  Rep. 

168.     Sharpe  v.  Earl   of  Scarbro',  3  761. 
Ves.  jun.  557.     Knight  v.  Maclean,  3 


(1)  SImUz's  Jpjjcal,  11  Sfi-^'.  k  Kawle,  18'i. 
24 


287  CREDITOR  GAINING  PRIORITY.  [bOOK  III. 

the  detention(i<?).  Book  debts,  indeed,  form  an  exception  to  tliis 
rule:  By  the  common  law  they  do  not  of  course  carry  interest,  but 
even  on  them  it  may  be  payable  in  consequence  [28S]  of  the  usage 
of  particular  brandies  of  trade,  or  in  cases  of  long  delay  under  vexa- 
tious and  oppressive  circumstances,  if  a  jury  in  their  discretion  shall 
think  fit  to  allow  it(.r). 

If  the  testator  by  the  will  direct  that  all  his  debts  shall  be  paid,  or 
make  any  provision  for  the  payment  of  his  debts  in  general,  this 
shall  revive  a  debt  barred  by  the  statute  of  limitations,  and  render  it 
payable  by  the  executor  with  the  others(3/). 

The  princij)le  here  laid  down  must  notnovvbe  considered  as  the  law, 
as  in  a  late  case  Sir  Thomas  Pliimer,  V.  C,  in  an  elaborate  judgment, 
after  considering  all  the  autiiorities,  decided,  that  a  devise  in  trust  for 
payment  of  debts,  did  not  revive  a  debt,  upon  which  the  statute  of 
limitations  had  taken  eliect,  by  the  expiration  of  the  time  before  the 
testator's  death(z).(l) 


Sect.  IV.  / 

Of  a  creditor's  gaining  priority  by  legal  or  equitable  process. —  Of 
notice  to  an  executor  of  debts  by  specialty,  or  simple  contract. 

Such  is  the  order  which  the  law  prescribes  to  an  executor  for  the 
payment  of  debts;  and  although  he  has  a  right  to  pay  one  creditor  in 
preference  to  another  of  the  same  degree,  yet  this  election  may  be 
controlled  by  legal  or  equitable  proceedings  against  him,  of  which 
he  has  due  notice(«).  Thus,  if  an  action  be  properly  commenced 
against  an  executor  for  any  specific  debt,  it  must  be  preferred  by  him 
in  payment  to  others  of  the  same  class.  Nor,  in  [289]  that  case, 
shall  he  be  warranted  in  making  any  voluntary  payment  of  such 
other  debts,  to  defeat  the  party  of  his  remedy(6). 

Yet  although  one  creditor  commence  an  action,  if  another  creditor 

{w)  Craven  v.  Tickel,  1  Ves.  jun.  (a)  Off.  Ex.  145. 

63.  (i)  11  Vin.Abr.296,innote.  Good- 

{x)    Eddowes  v.  Hopkins,   Dougl.  fellow  v.  Burchett,  2  Vern.  300.     2 

S6I.  Fonbl.  412.     Com.  Dig.  Admon.  C.  2. 

(y)  Andrews  v.  Brown,  Prec.  Ch.  3  Bac.  Abr.  83.     Parker  v.   Dee,  2 

385.     Blakewayv.  Earl  of  Strafford,  2  Chan.  Ca.  201.      SoUey  v.  Gower,  2 

P.  Wms.  373.  Vern.  62.     Off.  Ex.  143.  146.    2  Bl. 

(z)  Burke  v.  Jones,  2  Ves.  &  Bea.  Com.  512. 
275. 


(1)  Roosevelt  y.  Mark,  6  Johns.  Cha.  Rep.  266.  Bro-wri's  Adm.  v.  Griffith,  6  Munf. 
450.  Smith  V.  Porter,  1  Binn.  209.  CampbeWs  Ex.  v.  SnUivan,  Hard.  Rep.  17.  Chan- 
dler^s  Ex.  \:J\'eal's  Ex.  2  Hen.  k,  Munf.  124.  See  Lewises  Ex.  v.  Bacon's  Legatees,  3 
Hen.  k  Munf.  89.  Jlnonymoits,  1  Hayw.  243.  Bui  a  trust  for  the  payment  of  debts  in 
a  will  of  personal  estate  will  prevent  the  operation  of  tlic  statute  upona  debt  not  barred  by 
it  at  the  testator's  death.    Jones  v.  Scott,  1  Russ.  &  Milne,  255. 


CHAP.  II.]  CREDITOR  GAINING  PRIORITY.  289 

in  equal  degree  commence  a  subsequent  action,  and  first  recover 
judgment,  he  must  be  first  satisfied.  Hence  an  executor  has  it  in  his 
election  to  give  a  preference  by  confessing  judgment  in  the  action 
of  the  one,  and  pleading  such  judgment  to  the  action  of  the  other(c). 
But  if,  for  the  purpose  of  favouring  the  claim  of  one  plaintiff  in  pre- 
judice to  that  of  another,  he  plead  a  matter  which  he  knows  to  be 
false,  the  plea  shall  not  be  available,  as  it  shall  be  if  the  falsity  exists 
not  in  his  own  knowledge,  as  if  he  plead  non  est  factum  testatoris{d). 

And  even  after  an  interlocutory  judgment,  and  before  the  execu- 
tion of  a  writ  of  inquiry  of  damages,  he  may  confess  a  judgment  in 
an  action  for  a  debt  in  equal  degree(e) ;  for  he  is  in  no  case  bound 
against  his  will  to  defend  a  suit,  and  expend  the  assets  in  costs,  where 
the  case  is  clear(y). 

According  to  several  adjudged  cases(^),  the  filing  of  a  bill  in 
[290]  equity  shall  equally  prevent  the  alienation  of  assets  as  the  filing 
of  an  original  at  law.  And,  therefore,  if  a  suit  in  chancery  be  insti- 
tuted by  a  creditor  against  an  executor,  he  cannot  justify  a  voluntary 
payment  of  another  creditor  of  the  same  order.  But  a  decision  to 
that  effect  was  reversed  in  the  House  of  Lords,  principally  on  the 
ground,  that  a  decree  cannot  be  pleaded  at  law  to  an  action  brought 
against  an  executor  on  another  debt  of  equal  rank.  However,  it  is 
now  settled,  that  though  a  decree  in  equity  cannot  be  pleaded  at  law, 
it  is  equivalent,  in  the  administration  of  assets,  to  a  judgment;  and, 
therefore,  that  if  a  decree  have  a  real  priority  in  point  of  time,  not 
by  fiction  and  relation  to  the  first  day  of  term,  it  shall  be  preferred, 
in  the  order  of  payment,  to  subsequent  judgments;  and  the  execu- 
tor, as  we  liave  seen,  shall  be  protected  in  his  obedience  to  such  de- 
cree, and  all  proceedings  against  him  at  law  stayed  by  injunction(A). 
So,  pending  a  suit  in  equity  by  one  creditor,  an  executor  may  con- 
fess a  judgment  at  law  in  favour  of  another  creditor  of  the  same  de- 
gree(z).  Or  after  a  suit  instituted  by  a  creditor  for  an  account,  pay 
any  other  creditor  in  preference,  and  he  will  be  allowed  such  pay- 
ment in  passing  his  accounts(A;). 

He  may  also  confess  a  judgment  after  a  decree  quod  computet, 
if  before  a  final  decree.     Such  decree  quod  computet,  is  analogous 

(c)  Off.  Ex.  145.  11  Vin.  Abr.  296.  Earl  of  Orford,  ib.  188.  Wright  v. 
in  note,  302.  Palmer  v.  Lawson,  1  Lev.  Woodward,  1  Vern.  369.  3  Bae.  Abr. 
200.     Waring  V.  Danvers,  1  P.  Wms.      81. 

295.     Mellor  v.  Overton,  Carter,  228.  {h)  Peploe  v.  Swinburn,  Bunb.  48. 

Goodfellow  V.  Burchett,  2  Vern.  300.  Darstoa  v.  Earl  of  Orford,  3  P.  Wms 

Swinb.p.  6,s.  16.     2  Fonbl.  411,  412.  401,  note  F.     Forrest,  217.     Harding 

Holbird  v.    Anderson,  5  Terra  Rep.  v.  Edge,  1  Vern.  143.     2  Vern.     Bu- 

238,  239.  cele  v.  Atleo,  37.     Searle  v.  Lane,  88. 

(d)  11  Vin.  Abr.  296.  Parker  v.  Morrice  v.  Bank  of  England, Ca.  Temp. 
Dee,  2  Chan.  Ca.  201.     Jolly  v.  Gow-  Talb.  217.     4  Bro.  P.  C.  287. 

er,  2  Vern,  62.  (t)  Waring  v.  Danvers,  1  P.  Wma. 

(e)  Smith  v.  Haskins,  2  Atk.  386.        205.     Ca.  Temp.  Talb.  225. 

(/)  Off.  Ex.  145.  {k)  Maltby  v.   Russell,  2  ^im.  & 

(y?)  2  Fonbl.  412,  note  S.    Joseph  v.     Stu.  227. 
Mott,    Prec.   Chan.  79.     Darston   v. 


290  CREDITOR  GAINING  PRIORITY.  [bOOK  III. 

to  an  interlocutory  judgment  at  law;  it  docs  not  pass  in  rem  jucli- 
[291]  catayn  until  the  final  decree(/). 

Nor  will  equity  interpose,  where,  after  an  action  brought  by  one 
creditor,  an  executor  confesses  judgment  to  another  creditor  in  equal 
degree(?7i);  even  although  the  judgment  be  given  on  a  quantum  me- 
ruit, without  a  writ  of  inquiry  to  ascertain  the  damages,  if  they  be 
so  laid  in  the  declaration  as  not  to  exceed  the  debt  which  is  really 
due(?i).     Nor,  where  a   creditor  sues  an  executor  at  law  and  in 
equity  at  the  same  time  for  the  same  demand,  will  equity  compel 
him  to  make  his  election  in  which  of  the  courts  he  will  proceed,  in 
case  the  executor  be  attempting  to  prefer  other  creditors  before  him 
by  confessing  judgments  to  them,  but  will  merely  restrain  him  from 
taking  out  execution  on  the  judgment  without  leave  of  the  court(o). 
Nor  will  a  mere  demand  by  the  creditor  divest  tlie  executor  of  his 
right  of  giving  such  preference;  that  effect  can  be  produced  only  by 
the  process  of  a  court  of  justice(7>).     Thus  the  executor  is  invested 
with  large  discretionary  powers  of  preferring  one  creditor  to  another 
of  the  same  class,  and  in  certain  cases  he  may  avail  himself  of  the 
privilege  with  great  propriety,  and  on  solid  reasons(7).     But,  in  ge- 
neral, on  a  deficiency  of  assets,  it  were  [292]  a  more  honourable  and 
conscientious  discharge  of  his  duty,  as  far  as  he  has  the  power  of  de- 
ciding, to  pay  debts  of  equal  degree  in  equal  proportions(r). 

Nor  is  an  executor  warranted  merely  in  the  payment  of  one  debt 
before  another  of  the  same  order;  he  may  also  pay  a  debt  of  an  infe- 
rior nature  before  one  of  a  superior,  of  which  he  has  no  notice(5), 
provided  a  reasonable  time  has  elapsed  after  tlie  testator's  death;  for 
such  payment,  if  precipitate,  would  be  evidence  of  fraud. 

Of  debts  of  record,  supposing,  in  the  case  of  judgments,  they  are 
docketed,  it  has  been  already  stated,  an  executor  is  bound  to  take 
cognizance,  as  well  as  of  a  decree  in  equity:  constructive  notice  in 
respect  to  them  is  sufficient(^);  but  of  other  species  of  debts  there 
must  be  actual  notice. 

It  has  been  asserted,  that  such  notice  must  be  by  suit(w) ;  but  it  is 
perfectly  clear,  that  an  executor,  if  he  be  by  any  means  apprized  of 
a  debt  of  a  higher  degree,  would  not  be  justified  in  exhausting  the  as- 
sets in  the  discharge  of  one  which  is  inferior;  yet  unless  he  had 
some  notice  of  the  former,  he  incurs  no  risk  by  the  payment,  after  a 

(Z)  Smith  V.  Eyles,  2  Atk.  385.  Ca.  (r)  Off.  Ex.  260,  261.     3  Bl.  Com. 

Temp.  Talb.  217.  19. 

{in)  3  Bac.  Abr.  83,  in  note.     War-  (s)  3  Bac.  Abr.  82,  in  note.     L.  of 

ing  V.  Danvers,  1  P.  Wms.  295.  Ni.  Pri.  178. 

(n)  11  Vin.  Abr.  298,  in  note.  War-  (/)  Dyer,  32,  in  note.     3  Bac.  Abr. 

ing  V.  Danvers,  1  P.  Wms.  295.  83,  in  note.     Littleton  v.  Hibbins,  Cr. 

(o)  3  Bac.  Abr.  83.     Barker  v.  Du-  Eliz.  793.    Searle  v.  Lane,  2  Vern.  88, 

meres,  Barnard.  Ch.  Ca.  277.  89.     Sed  vid.  L.  of  Ni.  Pri.  178.  Har- 

(p)  Off.  Ex.  145.  man  v.  Harman,  3  Mod.  115. 

(o)  11  Vin.  Abr,  270.  228.  Blundi-  (m)  3  Bac.  Abr.  83,  in  note.  Brook- 
veil  v.  Loverdell,  Sid.  21.  Off.  Ex.  ing  v.  Jennings,  1  Mod.  175.  Vid. 
260.  Fitzgibb.  77. 


CHAP.  II.]       NOTICE  TO  EXECUTOR  OF  DEBTS.  293 

[293]  competent  time,  of  the  latter.  Hence  it  has  been  held,  that  an 
executor  may  plead  a  judgment  recovered  against  him  on  a  simple 
contract  to  an  action  of  debt  on  a  specialty,  if  he  had  no  notice  of  such 
specialty(i');  and  may  even  voluntarily  pay,  without  notice,  such  m- 
ferior  debt  in  exclusion  of  the  superior,  and  a  very  just  principle;  for 
otherwise  it  might  be  in  the  power  of  an  obligee  to  ruin  an  executor 
by  suppressing  a  bond  until  all  the  assets  were  expended  in  the  pay- 
ment of  simple  contract  debts(z^;).  And,  indeed,  after  a  suit  is  corn- 
menced,  yet  before  he  has  notice  of  the  plaintiff's  demand,  he  is 
warranted  in  paying  any  other  creditor(a:).  On  the  other  hand,  an 
executor  is  not  authorised  to  confess  a  judgment  for  a  debt  of  an  in- 
ferior nature,  if  he  has  notice  of  the  existence  of  a  superior.  Thus, 
where  an  executor  to  an  action  on  bond  pleaded  a  judgment  confess- 
ed by  him  on  the  preceding  day  on  a  simple  contract  debt,  the  plea 
was  disallowed,  on  the  ground  of  its  not  averring  that  the  defendant 
had  no  notice  of  the  plaintiff's  demand(y). 

If,  ignorant  of  the  existence  of  a  bond,  he  confess  a  judgment 
on  a  simple  contract,  and  afterwards  judgment  be  given  against 
him  on  the  bond,  he  is  bound,  however  insufficient  the  assets,  to 
[294]  satisfy  both  the  judgments,  for  he  might  have  pleaded  the 
first,  if  he  had  not  had  assets  for  both(r).  In  like  manner,  a  judg- 
ment must  be  satisfied,  though  recovered  against  one  executor  only 
where  there  are  several(«),  or  recovered  against  one  executor  by  the 
name  of  an  administrator,  or  vice  versd{b). 

(r)  3  Bac.  Abr.  82,  in  note.     Har-  Mod.  115.  L.  of  Ni.  Pr.  178. 

man  v.  Harman,  2  Show.  492.     S.  C.  {y)  Sawyer  v.  Mercer,  1  Term  Rep. 

3  Mod.  115.     L.  ofNi.  Pri.  178.  Da-  690. 

vis  V.  Monkhouse,  Fitzg.  76.     Scuda-  (2)  Com.  Dig.  Admon.  C.  2.     Brit- 
more  V.  Hearne,  Andrew's  Rep.  340.  ton  v.  Bathurst,  3  Lev.  114, 

(w)  3  Bac.  Abr.  82.     Off.  Ex.  145.  (a)  Com.  Dig.  Admon.  C.  2.    Cro. 

Britton  V.  Bathurst,  3  Lev.  115.  Haw-  Eliz.   471.     1    Sid.   404.     Parker  v. 

kins  V.  Day,  Ambl.    162.     Vid.  tam.  Amys,  1  Lev.  261. 

Greenwood  v.  Brudnish,Prec.  Ch.  534.  {b)  Com.  Dig.  Admon.  C.  2.  Anon. 

(x)  Off.    Ex.    145.     Plowd.   279.  Cro.  Eliz.  646.     Parker  v.  Masters,  I 

Finch.  L.  79.     Harman  v.  Harman,  3  Sid.404.  Sed  vid.  Anon.  Cro.Eliz.41. 


295  OF  executor's  retainer  [book  III. 


CHAPTER  III. 


OP  AN  executor's  RIGHT  TO  RETAIN  A  DEBT  DUE  TO  HIM  FROM 
THE  TESTATOR UNDER  WHAT  LIMITATIONS. 

If  a  debtor  appoint  his  creditor(a)  to  the  executorship,  he  is  al- 
lowed, both  at  law  and  in  equity,  to  retain  his  debt,  in  preference  to 
all  other  creditors  of  an  equal  degree.     This  remedy  arises  from 
the  mere  operation  of  law,  on  the  ground,  that  it  were  absurd  and  in- 
congruous that  lie  should  sue  himself,  or  that  the  same  hand  should 
at  once  pay  and  receive  the  same  debt.     And  therefore  he  may  ap- 
propriate a  sufficient  part  of  the  assets  in  satisfaction  of  his  own  de- 
mand; otherwise  he  would  be  exposed  to  the  greatest  hardship;  for, 
since  the  creditor  who  first  commences  a  suit  is  entitled  to  a  prefer- 
ence in  payment,  and  the  executor  can  commence  no  suit,  he  must, 
in  case  of  an  insolvent  estate,  necessarily  lose  his  debt,  unless  he  has 
the  right  of  retaining.     Thus,  from  the  legal  principle  of  the  priority 
of  such  creditor  as  first  commences  an  action,  the  doctrine  of  retain- 
er is  a  natural  deduction;  but  the  privilege  is  accompanied  with  this 
limitation,  that  he  shall  not  retain  his  own  debt  as  against  those  of  a 
higher  degree;  for  the  law  places  him  [296]  merely  in  the  same  situ- 
ation as  if  he  had  sued  himself  as  executor,  and  recovered  his  debt, 
which  there  could  be  no  room  to  suppose,  during  the  existence  of 
those  of  a  superior  order(6).     As  where  A.,  before  his  marriage,  co- 
venanted with  B.  and  C.  to  leave  them  by  his  will,  or  that  his  ex- 
ecutors within  six  months  after  his  death  should  pay  them  seven 
hundred  pounds,  in  trust  to  pay  the  interest  to  his  wife  for  life,  and, 
on  her  death,  to  divide  the  principal  among  his  children,  and,  in  de- 
fault of  children,  as  he  should  appoint,  and  bound  himself,  his  heirs, 
executors,  and  administrators,  in  a  penalty  for  performance,  on  his 
dying  before  his  wife,  without  issue,  and  intestate,  it  was  held,  that 
B.    in  the  character  of  administrator,   might  retain  assets  to  that 
amount  during  the  life  of  the  widow,  against  a  bond  creditor,  who 
sued  before  the  six  months  were  elapsed(c). 

So  if  A.  and  B.  be  jointly  and  severally  bound  in  an  obligation, 
and  A.  appoint  the  executrix  of  the  obligee  his  executrix,  and  die 
leaving  assets,  she  is  not  compelled  to  resort  to  an  action  against  B., 

(a)  Supr.  239,     Thynn  v.  Thynn,  1  543.     11  Vin.  Abr.  72.  261.     Winch. 

P.  \Vms.  296.  19-    Harg.  Co.  Litt.  264,  note  1.  Vid. 

\b)  2  Bl.  Com.  511.  3  Bl.  Com.  18,  infr. 

19    Off  Ex.  32.  142, 143.  Com.  Dig.  (c)  Plumer  v.   Marchant,  3   Burr. 

Adraon.  C.  2.     3  Bac.  Abr.  10.  83.  1380. 
Roll.   Abr.  922,    923.     Plowd.    185. 


CHAP.  III.]  FOR  HIS  DEBTS.  296 

but  is  entitled  to  retain  for  the  debt;  in  case  there  be  no  assets,  she 
has  a  right  to  pursue  her  remedy  on  the  bond  against  [297]  B.{d). 
So,  if  A.  be  indebted  to  B.  and  C.  by  several  bonds,  and  die,  and  D. 
take  out  administration  to  A, ,  and  afterwards  B.  die,  having  appoint- 
ed D.  his  executor,  he  may  retain  effects,  of  which  he  is  possessed  as 
administrator  of  A.,  to  satisfy  the  debt  due  to  him  as  the  executor  of 
B.(e).(l)  If  A.  be  indebted  in  a  bond  to  B.,  and  die,  having  appoint- 
ed B.  his  executor,  who,  after  having  intermeddled  with  the  goods, 
and  before  probate,  also  dies;  although,  before  his  death,  he  did  not 
expressly  elect  in  what  particular  effects  he  would  have  the  property 
altered;  yet  it  must  be  presumed  that  it  was  his  intention  to  pay  his 
own  debt  first,  and  therefore  his  executor  shall  have  the  same  power 
of  retaining  as  belonged  to  him(/).(2)  So,  for  a  bond  executed  by 
the  testator  to  A.  conditioned  for  the  payment  of  money  to  B.,  B.  it 
seems,  in  case  he  is  executor,  may  retain(^).  So,  if  administration 
be  granted  to  a  creditor,  and  afterwards  repealed  at  the  suit  of  the 
next  of  kin,  such  creditor  may  retain  against  the  rightful  adminis- 
trator(A).  In  short,  wherever  an  executor  might  have  been  sued,  or 
might  have  paid  a  debt,  he  has  authority  to  retain(/). 

But  where  A.  and  B.  were  joint  obligors  in  a  bond,  the  foriner  as 
principal,  the  latter  as  surety,  A.  died,  B.  took  out  administration  to 
him,  and  on  forfeiture  of  the  bond,  discharged  the  debt,  [298]  it 
was  held  that  he  could  not  retain,  for,  by  joining  in  the  bond,  the 
debt  became  his  own(i^).  Yet,  in  such  case,  it  seems  he  might  retain 
for  the  money  paid  as  constituting  a  simple  contract  debt. 

A  retainer  for  a  debt  may  either  be  given  in  evidence  on  plea  of 
ple?ie  administravit,  or  it  may  be  pleaded  specially(/). 

An  executor  may,  as  we  have  seen(m),  retain  both  at  law  and  in 
equity  for  his  whole  debt,  as  against  other  creditors  of  the  same  de- 
gree(7i):  but  equity  will  interpose  to  restrain  him  from  perverting 
this  privilege  to  the  purposes  of  fraud(o).  Nor  will  a  mere  nomi- 
nation of  a  creditor  to  the  executorship,  if  he  refuse  to  act,  extinguish 
his  legal  remedy  for  the  recovery  of  his  debt.  (7?).     Hence  if  a  cre- 

(d)  Com.  Dig.  Admon.  C.  1.  Fryer  mer  v.  Marchant,  3  Burr.  1384. 
v.Gndridge,Hob.lO.     3Bac.Abr.  10.  {k)  11  Vin.  Abr.  262.     Godby,  149. 
3  Kebl.  Rep.  166.     Cock  v.  Cross,  2  (/)  Loane  v.  Casey,  Bl.  Rep.  965. 
Lev.  73.  Plumerv.  Marchant,  3  Burr.  1383.  11 

(e)  11  Vin.  Abr.  261.  2  Brownl.  50.     Vin.  Abr.  266.     1  Brownl.  75. 
(/)    11    Vin.   Abr.  563.     Croft  v.  (m)   Supr.  295. 

Pyke,  3  P.  Wms.  183,  184,  and  note  («)  11  Vin.  Abr.  265,  in  note.  War- 

B.  ing  V.  Danvcrs,  1  P.  Wms.  295.  Mus- 

(g)  Com.  Dig.  Admon.  C.  2.  Semb.  son  v.  May,  3  Ves.  &  Bea.  194. 

Raym.  484.      °  (o)  3  Bac.  Abr.  83,  in  note.     Cock 

(/«)  11  Vin.  Abr.  265.  Blackborough  v.  Goodfellow,  10  Mod.  496. 

V.  Davis,  1  Salk.  38.  {p)  Rawlinson   v.   Shaw,  3  Term 

(i)  Com.  Dig.  Admon.  C.  2.     Plu-  Rep.  557. 


(1 )  Thomas  v.  Thompson,  2  Johns.  Rep.  471. 

(2)  Griffith  V.  C'/it-w's  Ex.  8  Serg.  &c  Rawlc,  29. 


298  OF  executor's  retainer  for  his  debts,     [book  III. 

ditor  be  appointed  executor  with  others,  he  may  sue  them,  especially 
if  he  hath  not  administered (7).  If  there  be  not  personal  assets,  he 
may  sue  the  heir,  where  the  heir  is  bound(r). 

(7)  3  Bac.  Abr.  10,  in  note.     Off.      Wankford   v.    Wankford,  Salk.   301. 
Ex.  33.  Off.  Ex.  33,  34. 

(r)  Harg.  Co.  Litt.  264  b,  note  1. 


CHAP.  IV.]  DIFFERENT  KINDS  OF  LEGACIES.  299 


CHAPTER  IV. 


OP  THE  PAYMENT  OP  J.EGACIES. 


Sect.  I. 

Legacy  what — who  may  he  legatees — who  not — legacies  gene- 
ral, and  specific — lapsed  and  vested. 

Having  thus  discussed  the  duty  of  an  executor  in  regard  to  the 
payment  of  debts  according  to  the  order  described  by  law,  the  pay 
ment  of  legacies,  in  the  next  place,  demands  his  attention. 

A  legacy  is  a  bequest,  or  gift  of  personal  property  by  will. 

All  persons  are  capable  of  being  legatees,  with  some  special  excep 
lions  by  common  law,  and  by  statute(«). 

To  this  disability  all  traitors  are  subject(Z»).  By  stats.  25  Car.  2. 
c.  2,  and  1  Geo.  1.  stat.  2,  c.  13,  persons  required  to  take  the  oaths 
[300]  and  otherwise  qualify  themselves  for  offices,  and  omitting  to 
do  so,  shall  be  incapable  of  a  legacy.  By  stat.  9  &  10  fVm.  3.  c.  32, 
persons  denying  the  Trinity,  or  asserting  that  there  are  more  Gods 
than  one,  or  denying  the  Christian  religion  to  be  true,  or  the  holy 
scriptures  to  be  of  divine  authority,  shall  for  the  second  offence  be 
also  incapable  of  any  legacy.  Likewise,  by  stat.  5  Geo.  3.  c.  27,  if 
artificers  going  out  of  the  realm  to  exercise  or  teach  their  trades 
abroad,  or  exercising  their  trades  in  foreign  parts,  shall  not  return 
within  six  months  next  after  due  warning  given  them,  they  shall  be 
subject  to  the  same  disqualification.  And  by  stat.  25  Geo.  2.  c.  6,  all 
legacies  given  by  will  or  codicil  to  witnesses  of  the  same  are  declared 
void(c).(l)  And  the  statute  extends  to  wills  disposing  of  personal 
property  only(^). 

Although  a  man  cannot  make  a  grant  to  his  wife,  nor  enter  into  a 
covenant  with  her,  (for  such  grant  would  be  to  suppose  Jier  separate 

(a)  Bl.  Com.  512.     4  Burn.  Eccl.  Burn.  Eccl.  L.  78. 
L.  313.     4  Bac.  Abr.  337.  (d)  Lees  v.   Summersgill,  17  Ves. 

(i)  2  Bl.  Com.  512.  jun.  508. 
(c)  Vid.   2  Bl.   Com.  377,   and  4 

(1)  A  legacy  given  to  a  feme  covert  during  her  own  life  and  that  of  her  liushand,  and 
to  the  lieirs  of  her  body,  but  if  she  had  none,  tiien  over,  and  the  husband  was  a  subscrib- 
ing witness  to  the  will,  but  died  before  it  was  proved,  and  another  subscribing  witness 
proved  it,  it  was  held  that  lie  (the  husband)  did  not  take  such  an  interest  in  the  legacy  as 
•would  make  it  void  under  the  sUitute,  on  account  of  his  being  a  subscribing  wittiess,  and 
that  the  wife  surviving  was  entitled  to  the  legacy.  WoodOerri/  v.  Colli/is's  Jix.  1  Desaus. 
Rep.  425. 

25 


300  DIFFERENT  KINDS  OF  LEGACIES.  [bOOK  III. 

existence,  and  to  covenant  with  her  would  be  to  covenoint  with  him- 
self,) yet  he  may  bequeath  any  thing  to  her  by  will,  since  tliat  can- 
not take  effect  till  the  coverture  is  determined  by  dcath(f/). 

An  infant  in  ventre  sa  mere  may,  as  we  have  seen,  be  appointed 
an  executor.  He  is  also  capable  of  being  a  lcgatec(e).  And  a  be- 
quest of  2000/.  each  "to  all  the  children  of  my  sister  I.  G.  whether 
now  born  or  hereafter  to  be  born,"  has  been  held  to  include  all  chil- 
dren born  after  the  testator's  death,  and  an  inquiry  was  directed, 
what  would  be  a  proper  sum  to  be  set  apart  to  answer  the  legacies  to 
future  cluldren(/).  And  a  bequest  in  trust  for  all  the  children  of 
the  testatrix's  nephew  R.,  horn  in  the  lifetime  of  the  testatrix,  was 
held  to  include  a  child,  of  which  the  wife  of  R.  was  cnciente  at  the 
time  of  the  testatrix's  death,  although  not  born  until  several  months 
afterwards(^).(l) 

If  a  legatee  is  sufficiently  described  in  a  will,  so  that  he  can  be 
identified,  a  mistake  of  his  christian  name  will  not  make  the  legacy 
void:  as,  where  a  testator  gave  a  legacy  unto  m,y  namesukeThomas, 
the  .second  son  of  my  brother  John,  John  had  no  son  of  the  name 
of  Thomas,  but  his  second  son's  name  was  William,  and  he  was  held 
entitled(A).(2)  And  where  legacies  were  given  "to  the  three  chil- 
dren of  A.  the  sum  of  600/.  each,"  and  there  were  four  children  all 
born  before  the  date  of  the  will;  the  four  were  held  entitled  to 
600/.  each,  for  that  it  was  a  mere  slip  in  expression,  the  meaning 
being,  all  children;  and  the  court  conceiving  the  intention  to  be  to 
give  to  each  child  so  much,  struck  out  the  specified  number(/).(3) 

Under  a  bequest  by  an  unmarried  man  "  to  my  children,"  parol 
evidence  was  allowed  to  show  whom  the  testator  considered  in  the 
character  of  children:  and  his  illegitimate  children,  having  obtained 
a  name  by  reputation,  were  admitted  to  take,  though  not  named  in  the 
will(y).    But  a  bequest  "  to  such  child  or  children,  if  more  than  one, 

{d)  1   Bl.   Com.  442.     Harg.  Co.  {h)  Stockdale    v.   Bushby,    Coop. 

Litt.  112.  Rep.  229,  and  10  Ves.  381,  S.  C.  and 

(e)  Northey  v.  Strange,  1  P.  Wms.  see  Careless  v.  Careless,  1  Meri.  Rep. 

342.  vid.  Ellison  V.  Airey,  1  Ves.  114.  384,  same  principle  decided,  and  19 

Clarke  v.  Blake,  2  Bro.  Ch.  Rep.  320,  Ves.  601. 

and  1  Cox's  Rep.  248.  {i)  Garvey  v.  Hebbert,  19  Ves.  125. 

(/)  Defflis  V.  Goldschmidt,  1  Mer.  ( j)  Beachcroft  v.  Beachcroft,  1  Mad. 

Rep.  417.     S.  C.  19  Ves.  566.  Rep.  430,  and  see  Lord  Woodhouselee 

(^)  Trower  v.  Butts,  1  Sim.  &;Stu.  v.  Dalryraple,  2  Meri.  Rep.  419. 
181. 


(1 )  So  where  the  testator,  after  directing  the  payment  of  his  debts  and  funeral  expen- 
ces,  and  giving  legacies  to  and  making  provision  for  his  wife,  and  giving  legacies  to  seve- 
ral of  his  grandchildren,  proceeded  as  follows,  "  I  will  and  devise  unto  my  grandchildren, 
the  children  of  my  son  Edward,  deceased,  all  the  remainder  and  residue  of  my  estate, 
both  real  and  personal,  whatsoever  and  wheresoever  to  be  found;"  it  was  held  that  a  post- 
humous grandchild,  in  ventre  sa  mere  at  the  making  of  the  will,  and  death  of  the  testa- 
tor, was  entitled  to  a  grandchild's  share  under  the  will.  Swift  v.  Duffield,  5  Serg.  & 
Rawle,  38. 

(2)  Powell  V.  Biddle,  2  Dall.  Rep.  70.     Thomas  v.  Stevem,  4  Johns.  Cha.  Rep.  607. 

(3)  Geer  et  iix.  v.  Winds,  4  Desaus.  Rep.  85. 


[chap.  IV.  DIFFERENT  KINDS  OF  LEGACIES.  300 

as  A.  may  happen  to  be  encient  of  by  me,"  a  natural  child  of  which 
she  was  then  pregnant,  cannot  take(A;). 

Grand-children  in  a  will  may  be  construed  to  mean  great-grand- 
children, unless  the  intention  appears  to  the  contrary (/).(!)  The 
word  "relations"  in  a  will  means  "  next  of  kin(m).(2)  And  a  be- 
quest by  a  testator  in  India  "to  my  nearest  surviving  relations  in  my 
native  country  Ireland,"  was  held  confined  to  brothers  and  sisters, 
living  in  Ireland  or  elsewhere(?i). 

[301]  Of  legacies  there  are  two  descriptions;  a  general  legacy,  and 
a  specific  legacy(o).  The  former  appellation  is  expressive  of  such 
as  are  pecuniary,  or  merely  of  quantity.  Under  the  denomination  of 
specific  legacies  two  kinds  of  gifts  are  included;  as,  first,  where  a  cer- 
tain chattel  is  particularly  described  and  distinguished  from  all  others 
of  the  same  species;  as,  "I  give  the  diamond  ring  presented  to  me  by 
A."  The  second  is  where  a  chattel  of  a  certain  species  is  bequeathed 
without  any  designation  of  it  as  an  individual  chattel;  as,  "I  give  a 
diamond  ring."  A  bequest  in  the  former  mode  can  be  satisfied  only 
by  the  delivery  of  the  identical  subject;  and  if  it  be  not  found  among 
the  testator's  effects,  it  fails  altogether,  unless  it  be  in  pawn,  when 
the  executor  must  redeem(jo)  it  for  the  legatee.  But  a  bequest  of 
the  latter  description  may  be  fulfilled  by  the  delivery  of  any  thing 
of  the  same  kind(^).(3)  A  legacy  of  "  50/.  for  a  ring"  is  a  general 
pecuniary  legacy  (r). 

Although  the  courts  are  averse  from  construing  legacies  to  be  spe- 
cific(5),  yet,  if  the  words  clearly  indicate  an  intention  to  separate  the 
particular  thing  bequeathed  from  the  general  property  of  the  testa- 
tor, they  shall  have  that  operation. (4)  Hence,  under  some  circum- 
stances, even  pecuniary  legacies  are  held  to  be  specific.  As  a  certain 
sum  of  money  in  a  certain  bag  or  chest(/),  or  in  navy  [302]  or  India 

(/f)  Earle  V.  Wilson,   17  Ves.  528;  Ch.    Rep.    113.     4   Bac.   Abr.   355. 

and  see  Arnold  v.  Preston,  18  Ves.  288.  Swinb.  part  7,  s.  20. 

(I)  Husseyv.  Berkeley,  2  Eden's  (7)  2  Fonbl.  374,  note  O.     Purse  v. 

Rep.  194.  Snaplin,    1    Atk.  416.     Forrest.  227. 

(m)  Pope  V.   Whitcomb,   3  Meri.  Bronsdon  v.  Winter,  Ambl.  57. 

Rep.  689.  {r)  Apreece  v.  Apreece,  1  Ves.  and 

(n)  Smith  V.  Campbell,  19  Ves.  400.  Bea.  364. 

(o)  4  Bac.  Abr.  337.  425.     2  Bl.  (s)  Ellis  v.  Walker,  Ambl.  310. 

Com.  512.  (0  Lawson  v.  Stitch,  1  Atk.  508. 

(p)  Ashburner  v.  M'Guire,  2  Bro. 


(1)  Pemherton  v.  Parke,  5  Binn.  601.  And  sons  and  daughters  in  a  will,  will  extend 
to  grandcluldren,  to  prevent  their  being  cut  off.  Smith's  Case,  '2  Desaus.  Rep.  123,  n. 
But  the  word  cliildren  will  not  be  hold  to  mean  grandcluldren,  unless  there  be  some  am- 
biguity in  the  testator's  will  rendering  it  necessary,  or  without  such  construction  his  in- 
tent could  not  be  satisfied.    Jzard  v.  Izard,  2  Desaus.  Rep.  .308. 

{-i)  MWeilledge  v.  Galbraiih,  8  Serg.  k  Rawle,  41.  M'JVeilUidge  v.  Barclarj,  11 
Serg.  hi.  Rawle,  103. 

(3)  A  bequest  of  "  twenty  negroes"  is  specific  only  in  the  second  degree.  Warren  v. 
Wigfall,  3  Desaus.  Rc]).  47. 

(4)  3  Desaus.  Rep.  373. 


302  DIFFERENT  KINDS  OF  LEGACIES.  [kOOK  III. 

bills(?0>  or  the  bequest  of  a  sum  of  money  in  the  hands  of  A.(y),  or  of 
two  thousand  pounds,  the  l)alance  due  to  the  testator  from  his  part- 
ner on  tlie  hist  settlement  between  them,  if  the  testator  did  not  draw 
such  money  out  of  trade  before  he  died(io).  So  a  devise  of  a  rent- 
charge  out  of  a  term  for  years(a,*),  and  a  bequest  of  a  bond,  or  of 
the  testator's  stock  (1)  in  a  particular  fund,  have  been  thus  classed(^), 
as  likewise  has  a  legacy  to  be  paid  out  of  the  profits  of  a  farm,  which 
the  testator  directed  to  be  carried  on(r).  And  a  bequest  of  all  the 
testator's  personal  estate  in  a  certain  town  has  been  so  considered(a). 

In  like  manner  the  testator  may  carve  specific  legacies  out  of  a 
specific  chattel;  as  where  he  gives  part  of  the  debt  due  to  him  from 
A.,  it  will  be  a  specific  legacy (6).  So  a  bequest  of  part  of  the  testa- 
tor's stock  in  a  certain  fund  shall  bear  the  same  construction(c). 
But  a  testator  reciting  that  he  had  1500/.  five  per  cents,  gave  it  to  A. 
and  then  gave  to  B.  all  other  his  stocks  that  he  might  be  possessed 
of  at  his  death;  the  latter  bequest  is  not  specific,  but  is  liable  to  debts 
in  preference  to  the  former(^). 

So  where  A.  devised  to  his  wife  all  his  personal  estate  at  B.,(2) 
this  was  held  to  be  a  specific  legacy;  and  the  same  as  if  he  had  enu- 
merated all  the  particulars  there(e). 

On  the  other  hand,  a  mere  bequest  of  quantity,  whether  of  mo- 
ney or  of  any  other  chattel(3),  is  a  general  legacy;  as  of  a  quantity  of 
stock(/).  And  where  the  testator  has  not  such  stock  at  his  death, 
such  bequest  amounts  to  a  direction  to  the  executor  to  procure  so 
[303]  much  stock  for  the  legatce(^'-). 

(m)  Pitt  V.  Lord  Camelford,  3  Bro.  (/y)  Heath  v.  Perry,  3  Atk.  103. 

Ch.  Rep.  160.     Gillaume  v.  Adderley,  (c)  Sleech  v.Thorington,  2  Ves.  563. 

15  Ves.  jun.  384.  See  2  Fonbl.  371,  note  O.    1  P.  Wms. 

(?')  Hinton  v.  Pinke,  1  P.  Wms.  540.  540,  note  1. 

\io)  Ellis  V.  Walker,  Ambl.  310.  (rf)  Parrot  v.  Worsfield,  1  Jac.  and 

\x)  Long  V.  Short,  1  P.  Wms.  403.  Walk.  Rep.  594. 

(//)  Ashburner  V.  Macguire,  2  Bro.  (e)  2  Fonbl.  376.    Sayer  v.  Sayer,  2 

Ch.  Rep.  108.    Forrest,  152.    Avelyn  Vern.  688. 

V.  Ward,  1  Ves.  425.    1  Eq.  Ca.  Abr.  (/)  1  P.  Wms.  540,  note.     Purse 

298.    Ashton  v.  Ashton,  3  P.  Wms.  v.   Snaplin,  1   Atk.   414.      Sleech  v. 

384.  Thorington,  2  Ves.  562. 

(z)  Mayott  v.  Mayott,  2  Bro.  Ch.  (^g)    Partridge    v.   Partridge,    Ca. 

Rep.  125.     Vid.  All-Souls' College  V.  Temp.   Talbot,   227.     Mann  v.  Cop- 

Coddington,  1  P.  Wms.  598.  land,  2  Madd.  Rep.  223. 

(a)  Sayer  v.  Sayer,  Prec.  Ch.  392. 


(1)  A  bequest  of  all  the  testator's  right,  interest,  and  property,  in  thirty  shares  in  the 
Bank  of  the  United  States  of  America,  is  a  specific  legacy.  Walton  v.  Walton,  7  Johns. 
Clia.  Rep.  258.    See  also  Cuthbert  v.  Cuthbert,  3  Yeates,  486. 

(2)  So,  "  I  leave  to  ray  beloved  wife  C.  the  whole  property  tliat  she  brought  me,  ex- 
cept two  negro  slaves  John  and  Maurice,"  is  a  specific  legacy.  Wan^en  v.  IVifffall,  3 
Desaus.  Rep.  47.  So,  "I  give  and  devise  unto  my  beloved  wife  B.  S.  two  cows,  she  to 
have  the  choice  out  of  all  my  cattle;  and  also  to  have  my  bed  and  bedstead,  with  all  be- 
longing to  it,  and  as  much  of  my  house  and  furniture  as  she  thinks  proper."  Comm.  v. 
Shelby,  \^  Serg.  &;  Rawle,  348.  See  also  Loocock  v.  Clarkson,  Stuart  v.  Carsoii's  Ex. 
1  Desaus.  Rep.  471.  501. 

(3)  Walker's  Appeal,  3  Rawle,  229. 


CHAP.  IV.]  DIFFERENT  KINDS  OF  LEGACIES.  303 

On  a  bequest  of  1000/.  long  annuities  "now  standing  in  my  name 
or  in  trust  for  me,"  where  at  the  date  of  the  will,  the  testatrix  had 
no  long  annuities,  but  had  1000/.  three  per  cent  reduced  annuities,  it 
was  held,  that  that  sum  passed  by  the  bequest(A). 

But  if  a  testator  gives  a  sum  in  stock,  standing  in  his  name,  and 
has  not  the  stock  described,  nor  any  other  stock,  the  legacy  fails(z). 
And  where  a  testator  being  indebted  on  mortgage,  and  possessed  of 
5000/.  stock,  by  his  will  gave  to  A.  and  B.  all  the  stock  he  had  in 
the  three  per  cents,  being  about  5000/.  except  500/.  which  he  gave  to 
C;  and  he  devised  other  specific  parts  of  his  property  to  be  sold, 
and  the  produce  to  be  applied  in  discharge  of  the  mortgage;  and  af- 
terwards the  testator  sold  out  2000/.,  part  of  the  5000/.,  and  paid 
off  the  mortgage  with  it:  this  was  held  to  have  redeemed  the  legacy 
pro  tanto,  and  that  the  specific  legatees  could  have  no  relief  from 
the  funds  by  the  will  appropriated  for  payment  of  the  mortgage(A;). 

So  the  purchase  to  which  a  general  legacy  is  to  be  applied  will 
not  alter  its  nature;  as  where  it  is  directed  to  be  laid  out  in  land(/). 
Personal  annuities  given  by  will  are  also  general  legacies(7w).  The 
same  legacies  may  be  specific  in  one  sense,  and  pecuniary  in  another; 
specific  as  given  out  of  a  particular  fund,  and  not  out  of  the  estate 
at  large;  pecuniary,  as  consisting  only  of  definite  sums  of  money, 
and  not  amounting  to  a  gift  of  the  fund  itself,  or  any  aliquot  part  of 
il(w). 

In  a  case  before  Lord  Camden,  C,  his  lordship  took  the  distinction 
between  a  legacy  of  a  certain  sum  due  from  a  particular  person,  and 
a  leg-acy  of  such  debt  generally,  considering  the  former  as  a  legacy 
of  quantity,  the  latter  as  specific(o).  So,  in  another  case,  where, 
after  the  following  bequest,  "  I  give  to  A.  one  thousand  four  hun- 
dred pounds,  for  which  I  have  sold  my  estate  this  day;"  the  testa- 
tor received  the  whole  of  that  sum,  paid  it  into  his  banker's,  and 
drew  out  one  thousand  one  hundred  pounds  of  the  money;  this 
was  also  held  by  Lord  Bathurst,  C.  to  be  a  legacy  of  quantity(/)). 
But  Lord  Thurlow,  C.  disallowed  that  distinction(y) ;  and  held  a 
legacy  of  "  the  principal  of  A.'s  bond  for  three  thousand  five  hun- 
dred pounds,"  to  be  a  specific  legacy,  notwithstanding  the  sum  was 
named.(l) 

A  legacy  to  a  natural  child,  of  "  5000/.  sterling,  or  50,000  current 

Qi)  Penticost  v.  Ley,  2  Jac.  &  Walk.  {n)  Smith  v.  Fitzgerald,  3  Ves.  and 

207.  Bea.  5. 

(t)  Evans  v.  Trip,  6  Madd.  Rep.  91.  (o)  2  P.  Wms.  330,  note  1.     Attor- 

{k)    Humphreys  v.  Humphreys,   2  ney-Gencral  v.  Parkin,  Ambl.  566. 

Cox's  Rep.  184.  {p)    Carteret  v.    Carteret,  cited  2 

(/)  Hinton  v.  Pink,  1  P.  Wms.  540.  Bro.  Ch.  Rep.  114. 

\rn)  Hume  V.  Edwards,  3  Atk.  693.  («/)  Ashburner  v.  Macguire,  2  Bro. 

Lewin  v.  Lewin,  2  Ves.  417.   2  Fonbl.  Ch.  Rep.  113,  114. 
378. 


fic 


(1)  So  a  bequest  of  "all  the  money  due  on  a  bond  against  P.  P.  and  J.  P."  is  a  speci- 
:  legacy.     Stout  v.  Itart,  2  llalst.  Rep.  414. 


303  LEGACIES  LAPSED  OR  VESTED.  [bOOK  111. 

rupees,"  afterwards  described  as  "now  vested  in  the  East  India 
Company's  bonds,"  and  sometimes  mentioned  as  "  the  said  sum  of 
5000/.  sterling,"  Lord  Eldon  held  not  specific  but  general;  as  a 
demonstrative  legacy,  with  a  fund  pointed  out(r). 

Such  are  the  different  species  of  legacies.     They  are  next  to  be 
considered  as  lapsed  or  vested.     It  is  a  general  rule,  that  if  a  lega- 
tee die  before  the  testator,  the  legacy  shall  be  lapsed(s),(l)  and  sink 
[304]  into  the  residuum  of  the  testator's  personal  estate;  nor  is  it 
an  exception  that  the  legacy  is  left  to  A.,  his  executors,  administra- 
tors, or  assigns(/);  or  to  A.  and  his  heirs.(2)     And  although  in  the 
bequest  of  a  legacy  to  A.  the  testator  should  express  an  intention 
that  it  should  not  lapse  in  case  A.  die  before  him,  this  is  not  suffi- 
cient to  exclude  the  next  of  kin(i/).   Yet  a  bequest  may  be  specially 
framed,  so  as  to  prevent  its  lapse  on  such  previous  death  of  the  le- 
gatee, as  if  in  case  of  the  death  of  A.  before  the  testator,  other  per- 
sons are  named  to  take,  for  instance,  A.'s  legal  representatives(v), 
or  the  "  heir  under  this  \yi\V'(w);  or  to  A.  "and  failing  him  by  de- 
cease before  me  to  his  heirs,"  the  legacy  on  A.'s  so  dying  shall  vest 
in  such  nominees(a^).     Nor  is  a  legacy  to  two  or  more  within  the 
rule;  for  it  is  settled,  that  a  legacy  to  several  persons  is  not  extin- 
guished by  the  death  of  one  of  them,  but  shall  vest  in  the  survivor(y). 
So  where  a  legacy  was  given  to  a  daughter  for  life,  with  a  power  to 
appoint  the  principal,  to  take  effect  after  her  death,  and  if  no  appoint- 
ment, then  to  A.  and  13.,  and  the  daughter  died  in  the  lifetime  of 
the  testator,  the  court  held,  that  A.  and  B.  took  immediately  upon  the 
testator's  death;  that  their  interest  was  postponed  only  for  the  sake 
of  the  daughter,  and  that  it  made  no  difference  that  she  might  have 
defeated  the  gift  by  appointment,  if  she  had  survived  the  testator, 

(r)  Gillaume  v.  Adderley,  15  Ves.  221. 

jun.  384.  (to)  Rose  v.  Rose,  17  Ves.  jun.  347. 

(s)  4  Bac.  Abr.  387.     Elliott  v.  Da-  Vaux  v.  Henderson,  1  Jac.  &  Walk, 

venport,  1  P.  Wms.  83.     Hutchinson  388. 

V.  Hammond,  3  Bro.  C.  C.  142.  (x)   Sibley  v.  Cook,  3   Atk.   572. 

{t)  Maybank  v.  Brooks,  1  Bro.  Ch.  See  also  Sibthorp  v.  Moxan,  3  Atk. 

Rep.  84.     Tidwell  v.  Ariel,  3  Madd.  580. 

Rep.  403.  (  y)  Northey  v.  Burbage,  Gilb.  Rep. 

(«)  Sibley  v.  Cook,  3  Atk.  572.  137.     Buffer  v.  Bradford,  2  Atk.  220. 

{v)  Bridge  v.  Abbott,  3  Bro.  C.  C.  Ryder  v.  Wager,  2  P.  Wms.  331. 


(1)  TVeishaupt  v.  Brehman,  5  Binn.  118.  Robinso?i  v.  Martin,  2  Yeates,  525.  By  tlie 
12th  section  of  the  act  of  8th  April,  183.3,  "  relatiug  to  last  wills  and  testaments,"  it  is  pro- 
vided, that  "  no  devise  or  legacy  in  favour  of  a  child,  or  other  lineal  descendant  of  any 
testator,  shall  be  deemed  or  held  to  lapse  or  become  void,  by  reason  of  the  decease  of  such 
devisee  or  legatee  in  the  lifetime  of  the  testator,  if  such  devisee  or  legatee  shall  leave  is- 
sue surviving  the  testator,  but  such  devise  or  legacy  shall  be  good  and  available  in  favour 
of  such  surviving  issue,  with  like  effect,  as  if  such  devisee  or  legatee  had  survived  the 
testator:  saving  always  to  every  testator  the  right  to  directotherwise."  (Pamph.  Laws, 
250.) 

(2)  Dickinson  v.  Pw-vis,  8  Serg.  Sc  Rawle,  '1.  Sword's  Lessee  v,  Ailams,  3  Yeates, 
34,  a  devise  to  a  granddaughter  before  the  act  of  19ll»  March,  1810. 


CHAP.  IV.]  LEGACIES  LAPSED  OR  VESTED.  304 

since  A.  and  B.  were  to  take  if  no  appointment(i<;).  But  where 
two  several  legacies  were  given  to  A.  and  B.,  and  in  case  A.  or  B. 
died  without  lawful  issue,  then  the  whole  of  the  said  two  lega- 
cies to  go  to  the  survivor,  his  executors,  administrators,  or  assigns, 
and  A.  died  without  issue  in  the  testator's  lifetime,  it  was  held  to 
have  lapsed,  the  contingency  on  which  it  was  given  over  being  too 
remote.  Nor  does  the  rule  extend  to  a  legacy  given  over  after  the 
death  of  the  first  legatee,  for  in  such  case  the  legatee  in  remainder 
shall  have  it  immediately(a;).  Nor  will  a  legacy  lapse  by  the  death 
of  the  legatee  in  the  testator's  lifetime,  if  he  is  to  take  in  the  character 
of  trustee(y). 

A  bequest  by  the  obligee  to  one  of  joint  obligors  of  a  debt  due 
on  the  bond,  in  these  terms — I  remit  ^.n&  forgive  to  T.  W.  the  sum 
of  500/.  which  he  stands  indebted  to  me  on  his  bond;  and  1  direct 
the  said  bond  to  be  delivered  up  to  him  and  cancelled^''  is  merely 
a  personal  legacy  to  T.  W.,  and  lapses  by  his  death  in  the  lifetime 
of  the  testator;  for,  notwithstanding  the  terms  in  which  it  is  be- 
queathed, such  a  bequest  does  not  operate  by  way  of  equitable  re- 
lease, or  as  an  extinguishment  of  the  debt.  Therefore  the  surviving 
co-obligor,  and  the  representatives  of  the  deceased  legatee,  are  not 
discharged  from  the  payment  of  the  money  due  on  the  bond(z). 

A  legacy  is  also  lapsed  if,  before  the  condition  on  which  it  is  given 
by  the  will  be  performed,  the  legatee  die,  or  if  he  die  before  [305]  it 
is  vested  in  interest(a). 

So  where  a  bequest  was  to  a  son  of  the  testator  on  his  accomplish- 
ing his  apprenticeship,  with  the  dividends  in  the  meantime  for 
maintenance,  and  in  case  he  should  die  before  he  accomplished  his 
apprenticeship,  then  and  in  such  case  to  other  children,  and  the 
legatee  died,  having  accomplished  his  apprenticeship  in  the  testa- 
tor's lifetime,  it  was  held  a  lapsed  legacy(6).  And  where  an  estate 
was  devised,  charged  with  two  several  legacies  to  A.  and  B.,  and 
in  case  A.  or  B.  died  without  lawful  issue,  then  the  whole  of  the 
said  two  legacies  to  go  to  the  survivor,  his  executors,  &c.  and  A. 
died  without  issue  in  the  testator's  lifetime,  the  legacy  was  held  to 
have  lapsed,  the  contingency  on  which  it  was  given  over  being  too 
remote(c). 

A  legacy  given  to  A.  to  be  paid  to  him,  his  executors,  &c.  within 
twelve  months  after  the  death  of  B.  "  in  case  B.  shall  happen  to 
survive  my  wife^^  and  B.  having  died  in  the  lifetime  of  the  testator's 

(w)  Chatteris  v.  Young,  6  Madd.  (y)  See  Oke  v.  Heath,  1  Ves.  140. 

Rep.  30.  Eeles  v.   England,  2  Vern.   468.     2 

(x)  1  And.  33,  pi.  82.     Miller  v.  Fonbl.  399,  note  G.  and  H.     Earl  of 

Warren,   2   Vern.   207.      Perkins   v.  Inchiquin  v.  French,  1  Cox's  Rep.  1, 

Micklethwaite,  1  P.  Wms.  274.     Ry-  (z)  Ison  v.  Butler,  2  Price  Rep,  34; 

der  V.  Wager,  2  P.  Wms.  331.     Wil-  and  see  Toplis  v.  Baker,  2  Cox's  Rep. 

ling  V.  Baine,  3  P.  Wms.  113.     Liim-  118, 

ley'v.  May,  Prec.  Ch.  37.    Hornsby  v.  (a)  2  Fonbl.  368.     1  Bac.  Abr.  410. 

Homsby,  Moseley,  319.     Woodward  (//)  llumberstone  v.  .Stanton,  1  Ves. 

V.  Glassbrook,  2  Vern.  378.     2  Fonbl,  &  Boa.  385. 

368,  note  G.  (c)  Massey  v.  Hudson,  2  Meriv.  130. 


305  LEGACIES  LAPSED  OR  VESTED.  [bOOK  III. 

wife,  the  latter  words  were  construed  with  reference  only  to  the 
time  of  payment,  and  not  to  make  void  the  legacy(Z>). 

We  have  already  seen  that  if  a  legacy  he  left  to  A.,  payable  to 
him  at  a  certain  age,  it  is  a  vested  and  transmissihle  interest  in  him, 
debitum  in  p7'xsc7iti  though  solvcndum  in  futuro:  That  it  is 
otherwise,  if  the  legacy  be  left  to  him  at,  or  if,  or  when  he  attains 
such  age(c).(l)  The  distinction  was  borrowed  from  the  civil  law, 
and  adopted  by  our  courts,  not  so  much  from  its  intrinsic  equity,  as 
from  its  prevailing  in  the  spiritual  courts;  for  since  the  chancery,  as 
will  be  hereafter  shown,  has  a  concurrent  jurisdiction  with  them  in 
respect  to  the  recovery  of  legacies,  it  is  reasonable  that  there  should 
be  a  conformity  in  their  decisions,  and  that  the  subject  should  have 
the  same  measure  of  justice,  to  whatsoever  court  he  may  resort. 
But  if  such  legacies  be  charged  on  a  real  estate,  or  upon  land  to  be 
purchased  with  the  residue  of  a  personal  estate(o^),  in  either  case 
they  shall  equally  lapse  for  the  benefit  of  the  heir;(2)  for  with  re- 
gard to  devises  affecting  lands,  the  ecclesiastical  courts  have  no  con- 
current jurisdiction,  and  therefore  the  distinction  does  not  extend  to 
them(e)".  If,  as  I  have  before  stated,  the  legacy  be  made  to  carry 
interest,  though  the  words  "  to  be  paid"  or  "  payable"  are  omitted, 
it  is  vested  and  transmissible(/).  So  if  the  [306]  bequest  be  to 
A.  for  life,  and  after  the  death  of  A.  to  B.,  the  bequest  of  B.  is  vested 
on  the  death  of  the  testator,  and  will  not  lapse  by  the  death  of  B.  in 
the  lifetime  of  A.(^). 

Where  a  will  recited  the  probability  that  the  legatee  was  not 
living,  and  gave  him  a  legacy  upon  express  condition  that  he  should 
return  to  England,  and  personally  claim  of  the  executrix  or  in  the 
church  porch;  and  that  if  he  should  not  so  claim  within  seven  years, 
he  was  to  be  presumed  dead,  and  the  legacy  to  fall  into  the  residue: 
the  legatee  not  having  returned,  and  dying  abroad  within  seven 
years.  Lord  Eldon  held  that  the  legacy  was  not  due;  the  existence 
of  the  legatee,  though  appearing  otherwise,  being  to  be  proved  by 
the  particular  means  prescribed,  and  therefore  not  within  the  cases 

(&)  Massey  v.  Hudson,  2  Meriv.  130.  373,  note  M. 

(c)  Vid.  supr.  171,  172.     2  Fonbl,  (/)  2  Fonbl.  371,  note  K.     Clob- 

371,  note  K.     Blois  v.  Blois,  2  Ventr.  berie's  case,  2  Ventr.  342.     Pullen  v. 

347.     2  Ch.  155.    Collins  v.  Metcalfe,  Serjeant,  2  Chan.  Ca.  155.     Stapleton 

1  Vern.  462.     Gordon  v.  Raines,  3  P.  v.  Cheele,  2  Vern.  673.     Herbert  v. 

Wms.  138.   Anon.  2  Vern.  199.   Glob-  Parsons,  2  Ves.  263.    Fonereau  v.  Fo- 

berie's  case,  2  Ventr.  342.     Smell  v.  nereau,  3  Atk.  645. 

Dee,  2  Salk.  415.     Dawson  v.  Killet,  (g)  2  Fonbl.  371,  note  K.     Anon. 

1  Bro.  Ch.  Rep.  119.  2  Ventr.  347.    Northey  v.  Strange,  1  P. 

((f)   Harrison  v.  Naylor,   2  Cox's  Wms.  342.  566.  Darrel  v.  Molesworth, 

Rep.  247.  2  Vern.    378.     Tunstall  v.  Bracken, 

(e)  4  Bac.  Abr.  393.  2  Bl.  Com.  513.  Ambl.  167.     Dawson  v.  Killet,  1  Bro. 

1  Eq.  Ca.  Abr.  295.    Duke  of  Chandos  Ch.  Rep.  119.  181. 
V.  Talbot,  2  P.  Wms.  601.     2  Fonbl. 


(1)  Patterson  v.  Haivthom,  12  Serg.  &  Rawle,  113.     Stone  v.  Massey,  2  Yeates,  3fi9. 

(2)  Stone  v.  Massey,  2  Yeates,  369.     Patterson  v.  Haivthom,  12  Serg.  &  Rawle,  114. 


CHAP.  IV.]   OF  THE  EXECUTOr's  ASSENT  TO  A  LEGACY. 


306 


from  the  civil  law,  where,  the  end  being  obtained,  the  means  were 
not  essential(A). 


Sect.  II. 

Of  the  executor'' s  assent  to  a  legacy — on  what  principle  neces- 
sary— what  shall  amount  to  such  assent — Assent  express  or 
implied — absolute  or  conditional — has  relation  to  the  testa- 
tor^ s  death — when  once  made,  irremeable — when  incapable  of 
being  made. 

But  the  bequest  of  a  legacy,  whether  it  be  general  or  specific, 
transfers  only  an  inchoate  property  to  the  legatee.  To  render  it 
complete  and  perfect,  the  assent  of  the  executor  is  requisite(«).(l) 
On  him  all  the  testator's  personal  property  is  devolved,  to  be  ap- 
plied in  the  first  place,  to  the  payment  of  debts;  and,  therefore,  be- 
fore he  can  pay  legacies  with  safety,  he  is  bound  to  see  whether,  in- 
dependently of  them,  a  fund  has  been  left  sufiicient  for  the  demands 
of  creditors. 

In  case  the  assets  prove  inadequate,  the  legacies  must  abate  or  fail 
altogether,  according  to  the  extent  of  the  deficiency.  If,  on  a  fail- 
[307]  ure  of  assets,  he  pay  legacies,  he  makes  himself  personally 
responsible  for  the  debts  to  the  amount  of  such  legacies.  Hence, 
as  a  protection  to  the  executor,  the  law  imposes  the  necessity  of  his 
assent  to  a  legacy  before  it  can  be  absolutely  vested;  and  such  assent 
when  once  given,  is  considered  as  evidence  of  assets,  and  an  admis- 
sion on  the  part  of  the  executor  that  the  fund  is  competent(6). 

If,  without  the  assent  of  the  executor,  the  legatee  take  possession 
of  the  thing  bequeathed,  the  executor  may  maintain  an  action  of 
trespass  against  him(c).(2)  Nor,  even  in  case  of  a  specific  legacy, 
whether  a  chattel  real  or  personal  be  in  the  custody  or  possession  of 
the  legatee,  and  the  assets  be  fully  adequate  to  the  payment  of  debts, 
has  he  a  right  to  retain  it  in  opposition  to  the  executor,  by  whom  in 
such  case  an  action  will  lie  to  recover  it(^/)?(3)  Nor  has  such  legatee 
authority  to  take  possession  of  the  legacy  without  the  executor's 
assent,  although  the  testator  by  his  will  expressly  direct  that  he 

[K)   Tulk  V.  Houldilch,  1  Ves.  &  v.  Whitehead,  2  P.  Wms.  645. 

Bea.  248.  {]>)  Off.  Ex.  27,  28. 

(a)  3  Bac.  Abr.  84.    2  Bl.  Com.  512.  (c)  Off.  Ex.  27. 223.  3  Bac.  Abr.  84. 

Ilarg.  Co.  Liu.  111.    Aleyn.  39.    Ab-  4  Bac.  Abr.  444.     Dyer,  254.    Keilw. 

ney  v.  Miller,  2  Atk.  598.     Mead  v.  128. 

Lord  Orrery,  3  Atk.  240.     Farrington  (J)  Mead  v.  Ld.  Orrery,  3  Atk.  240. 

V.  Knifrhtly,  1  P.  VVras.  554.     Bennet  Off.  Ex.  222,  223. 


(1)  Wihon  V.  nine,  1  Harr.  &  Johns.  139.     llaivston  v.  Hall,  3  Call,  1S8. 

(2)  3  Call,  189.     Or  trover,  fVikon's  Ex.  v.  Jli?ie,  1  Harr.  k  Johns.  138. 

(3)  Sec,  however,  Andrews  v.  Jlunneman,  0  I'ick.  Ucp.  I'iO. 

26 


307     OF  THE  executor's  assent  to  a  legacy,   [book  III. 

shall  do  so;  for,  if  this  were  permitted,  a  testator  might  appoint  all 
his  effects  to  be  thus  taken  in  fraud  of  his  creditors(e).  Yet,  previ- 
ously to  the  assent  of  the  executor,  a  legatee  has  such  an  interest  in 
the  thing  bequeathed,  as  that,  in  case  of  his  death  before  it  be  paid  or 
delivered,  it  shall  go  to  his  [;30S]  representative(y'),  or,  in  case  of 
the  outlawry  of  the  legatee,  shall  be  subject  to  the  forfeiture(,^). 

If  A.  release  by  will  a  debt  due  to  him  from  B.,  it  is  the  better 
opinion  that  the  assent  of  the  executor  is  necessary  to  give  effect  to 
the  testator's  intention;  for  although  on  the  one  hand  it  may  be  al- 
leged that  the  party  to  whom  the  debt  is  bequeathed  must  neces- 
sarily have  it  by  way  of  retainer,  and  that  such  a  clause  operates 
rather  as  an  extinguishment  than  as  a  donation,  and  therefore  that  it 
needs  no  such  assent  as  where  there  is  to  be  a  transfer  of  the  pro- 
perty: yet,  on  the  other  hand,  a  debt  so  released  is  regarded,  with 
great  reason,  in  the  light  of  a  legacy,  and,  like  other  legacies,  not  to 
be  sanctioned  by  the  executor,  in  case  the  estate  be  insufiicient  for 
the  payment  of  debts.  But  as  soon  as  the  executor  assents,  and  not 
before,  it  shall  be  effectually  discharged(/i). 

With  respect  to  what  shall  constitute  such  assent  on  the  part  of 
the  executor,  the  law  has  for  this  purpose  prescribed  no  specific 
form;  a  very  slight  assent  is  held  suflicient(/).  It  may  be  either  ex- 
press or  implied,  absolute  or  conditional. 

The  executor  may  not  only  in  direct  terms  authorize  the  legatee 
to  take  possession  of  the  legacy,  but  his  concurrence  may  be  infer- 
[309]  red  either  from  indirect  expressions  or  particular  acts.  And 
such  constructive  permission  shall  be  equally  available.(l)  Thus,  for 
instance,  if  the  executor  congratulate  the  legatee  on  his  legacy;  or 
if  a  horse  is  bequeathed  to  A.,  and  the  executor  requests  him  to  dis- 
pose of  it;  or  if  B.  proposes  to  purchase  the  horse  of  the  executor, 
and  he  directs  B.  to  buy  it  of  A.;  or  if  the  executor  himself  pur- 
chase the  horse  of  A.,  or  merely  offer  him  money  for  it;  this  in 
either  case  amounts  to  an  assent  by  implication  to  the  legacy(A^). 
So  where  A.,  the  devisee  of  a  term,  granted  it  to  the  executor,  his 
acceptance  of  the  grant  from  A.  was  held  to  be  an  implied  permis- 
sion that  the  term  should  be  A.'s  to  grant(/).  So  where  J.  S.  seised 
in  fee  of  a  foreign  plantation,  devised  it  to  A.,  and  the  executor 
granted  a  lease  of  it  for  years,  reserving  rent  in  trust  for  A.,  this 
was  adjudged  a  suflicient  assent(w). 

If  a  term  be  devised  to  A.  for  life,  remainder  to  B.  the  assent  of 

(e)  Ofr.  Ex.  223.  S.  C.  460.     S.  C.  2  Ventr.   358.     4 

(/)  Ofr.  Ex.  28.  Bac.  Abr.  445. 

(g-)  Vid.  Off.  Ex.  20.  (Z-)  4  Bac.  Abr.  445.     Off.  Ex.  226. 

(A)  Off.  Ex.  29,  30.     Rider  v.  Wa-  Com.    Dig.    Admon.    C.    G.     Stiep. 

ger,  2  P.  Wms.  332.     Vid.  Fellowes  Touchs.  456. 
V.  Mitchefl,  1  P.  Wms.  83.     Siblhorp         (/)  Off.  Ex.  226. 
V.  Moxam,  3  Atk.  580.  (m)  Noel  v.  Robinson,  2  Ventr.  358. 

(j)  Noel  V.  Robinson,  1  Vern.  94. 


(1)  Sec  Jliulrervs  v.  JIuniicman,  6  Pick.  Itcp.  126. 


CHAP.  IV.]      OF  THE  EXECUTOr's  ASSENT  TO  A  LEGACY.  309 

the  executor  to  the  devise  to  A.  shall  operate  as  an  assent  of  the 
devise  over  to  B,,  and  vest  an  interest  in  him  accordingly(?j).     So 
an  assent  to  such  estate  in  remainder  is  an  assent  to  the  present  es- 
tate(o):  For  the  particular  estate  and  the  remainder  constitute  but 
one  estate(jo).     But  if  a  lessee  for  years  bequeath  a  rent  to  A.,  and 
[310]  the  land  to  B.,  the  executor's  assent  that  A.  should  have  the 
rent,  is  no  assent  that  B.  should  have  the  land,  because  the  rent  and 
the  land  are  distinct  legacies;  but,  under  special  circumstances,  an 
executor's  assent  to  one  legacy  may  enure  to  another,  as  if  the  case 
last-mentioned  be  reversed:  The  executor's  assent  that  B.  should 
have  the  land  seems  to  imply  his  assent  that  A.  should  have  the  rent;' 
for  the  necessity  of  the  executor's  assent  is  established  with  a  view 
to  creditors;  now  to  them  the  land  is  equally  unproductive,  whether 
it  passes  to  B.  charged  with  the  rent,  or  not;  and  also,  as  it  was  the 
testator's  intention  that  B.  should  hold  the  land  subject  to  the  rent 
to  A.,  the  executor's  assent  to  B.'s  having  the  land  shall,  in  con- 
formity to  the  will,  be  construed  an  assent  to  the  legacy  to  A.  (q). 
So  an  assent  to  a  devise  of  a  lease  for  years  is  an  assent  to  a  condi- 
tion or  contingency  annexed  to  it:  As,  if  there  be  a  devise  of  a  term 
to  the  testator's  widow,  so  long  as  she  continues  unmarried;  and  if 
she  marry,  then  of  a  rent  payable  out  of  the  land;  the  executor's  as- 
sent to  the  devise  of  the  term  is  an  assent  to  that  of  the  rent  in  case 
of  the  devisee's  marriage(r). 

An  assent  may  also  be  absolute  or  conditional.  If  it  be  of  the 
latter  description,  the  condition  must  be  precedent:  As,  where  the 
executor  assents  to  the  devise  of  a  term,  if  the  devisee  will  pay  the 
rent  in  arrear  at  the  testator's  death.  In  that  case,  if  the  condition 
be  not  performed,  there  is  no  assent;  but  if  the  assent  be  on  a  con- 
[311]  dition  subsequent,  as  provided  the  legatee  will  pay  the  execu- 
tor a  certain  sum  annually:  such  condition  is  void,  and  a  failure  in 
performing  it  shall  not  divest  the  legatee  of  his  legacy(.y).  The  state 
of  the  fund  may  require  the  executor  to  impose  a  condition  precedent 
to  his  payment  of  the  legacy;  but  if  he  once  part  with  it,  he  has  no 
right  to  clog  it  with  future  stipulations,  and  make  that  legacy  con- 
ditional which  the  testator  gave  absolutely(/). 

The  assent  of  an  executor  shall  have  relation  to  the  time  of  the 
testator's  death.  Hence,  if  A.  devise  to  B.  his  term  of  years  in 
tithes,  in  an  advowson,  or  in  a  house  or  land,  and  after  the  testator's 
death,  and  before  the  executor's  assent,  tithes  are  set  out,  the  church 
becomes  void,  or  rent  from  the  under  tenant  I'ecomes  payable,  the 
assent  by  relation  shall  perfect  the  legatee's  title  to  these  several  in- 
terests(  w).  So  such  assent  shall  by  relation  confirm  an  intermediate 
grant  by  the  legatee  of  his  legacy(/>). 

(«)  Com.  Dirr.  Admoii.  C.  G.   10  Co.  Abr.  620. 

47  b.     1  lioll.  Abr.  G20.     Plowd.  545,  (.s)  Com.  Dirr.  Admon.  C.  8.     OIT. 

in  note.  Adams  v.  Price,  3  P.  Wms.  12.  Ex.   238.     4  13ac.  Abr.  445.     Leon, 

(o)  Com.  Dig.  Admon.  C.  G.  130,  131. 

(/j)  Oir.  Ex.  236.  (0  0(T.  Ex.  238. 

(y)  OtT.  Ex.  237.  (^0  <>'I"-  '''>^-  2'13- 

(r)  Com.  Dig.  Admon.  C.  G.   1  lioll.  (c)  Ibid.  250. 


311  OF  THE  PAYMENT  OF  LEGACIES.  [nOOK  III. 

If  an  executor  once  assent  to  a  legacy,  he  can  never  afterwards 
retract,  and,  notwithstanding  a  subsequent  dissent,  a  specific  legatee 
has  a  right  to  take  tlic  legacy(/),  and  has  a  lien  on  the  assets  for  that 
specific  part  and  may  follow  Ihem.  And  an  action  at  law  lies  against 
an  executor  to  recover  a  specific  chattel  bequeathed,  after  his  assent 
to  the  bequest(i^). 

If  a  term  is  devised  to  A.,  and  the  executor,  before  he  assents  to 
[312]  the  devise,  take  a  new  lease  of  the  same  land  to  himself  for  a 
larger  term  in  possession,  or  to  commence  immediately,  the  term 
devised  is  merged,  so  that  it  cannot  pass  to  A.,  although  the  execu- 
tor should  afterwards  assent(?)).  An  assent  to  a  void  legacy  is  also 
void(?^). 

Such  is  the  nature  of  an  executor's  assent  to  a  legacy.  We  have 
already  seen  that  he  is  competent  to  give  it  before  probate(a;).  But 
if  he  has  not  attained  the  age  of  twenty-one  years,  he  is  incapable  by 
the  above-mentioned  stat.  38  Geo.  3.  c.  ^l{y),  of  the  functions  of  an 
executor,  and  therefore  his  assent  is  of  no  validity(r). 


Sect.  III. 

When  a  legacy  is  to  be  paid — to  tvhom — of  payment  in  the  case 
of  infant  legatees — of  a  Tnarricd  looman — of  a  conditional 
payment  of  a  legacy — of  payment  of  interest  on  legacies — of 
such  payment  where  the  legatees  are  infants — of  the  rate  of 
interest  payable  on  legacies. 

On  the  same  principle  that  the  assent  of  an  executor  to  a  legacy 
is  necessary,  he  cannot,  before  a  competent  time  has  elapsed,  be 
[313]  compelled  to  pay  it.  The  period  fixed  by  the  civil  law  for 
that  purpose,  which  our  courts  have  also  prescribed,  and  which  is 
analogous  to  the  statute  of  distribution,  (as  will  be  hereafter  seen,)  is 
a  year  from  the  testator's  death,  during  which  it  is  presumed  he  may 
fully  inform  himself  of  the  state  of  the  property  («). 

Legacies  to  C.  "  and  to  the  heir  of  his  body,"  to  M.  "  to  be  secured 
to  her  and  the  heirs  of  her  body,"  to  F.  "  and  to  her  issue,"  are  ab- 
solute legacies:  but  a  legacy  to  S.  "and  to  her  heirs  (say  children), 
S.  is  only  entitled  for  life(Z>). 

If  a  legacy  to  an  infant  be  payable  at  twenty-one,  and  he  die  be- 
fore, his  representative  cannot  claim  it  till,  in  case  he  had  lived,  he 
would  have  come  of  age(c);  unless  it  be  payable  with  interest,  and 

(/)  Off.  Ex.  227.     4  Bac.  Abr.  445.  {a)  4  Bac.  Abr.  434.     Smell  v.  Dee, 

Mead  v.  Lord  Orrery,  3  Atk.  238.  2  Salk.  415,  pi.  2. 

(w)  Doe  V.  Guy,  3  East,  120.  {b)   Crawford  v.  Trotter,  4  Madd. 

(r)  Off.  Ex.  228.  Rep.  361. 

{w)  Plowd.  526.  (c)   Luke  v.  Alderne,  2  Vern.   31. 

(jx)  Vid.  supr.  46.  Anon.  ib.   199.     Papworth  v.  Moore, 

\y^  Supr.  31.  283.     Chester  v.  Painter,  2  V.  Wms. 

(=j  Vid.Com.Dig.Admon.  E.   Off.  33G. 
Ex.  224. 


CHAP.  IV.]       OF  THE  PAYMENT  OF  LEGACIES.    '       313 

then,  as  we  have  seen,  such  representative  has  a  right  immediately 
to  receive  it(c).  If  a  legacy  be  payable  out  of  land  at  a  future  day, 
although  given  with  interest  in  the  meantime,  if  the  legatee  die  be- 
fore the  day  of  payment,  the  court  will  not  direct  the  legacy  to  be 
raised  until  the  time  for  payment  arrives,  although  it  will  secure  a 
personal  fund  for  a  future  or  contingent  legatee(of).  But  where  a 
will  directed  that  certain  legacies  "  were  to  be  paid  on  the  land," 
but  expressed  neither  the  time  nor  the  manner  in  which  they  should 
be  raised;  nor  did  it  appear,  as  the  fact  was,  that  the  estate  was  a 
reversion:  the  court  held,  that  as  a  reversion  was  as  capable  of  being 
sold  or  mortgaged  as  any  other  estate,  the  legacies  should  be  raised 
and  paid  with  interest  from  the  testator's  death,  and  not  from  the 
tinie  of  the  estate  falling  in.  In  case  a  legacy  be  left  to  A.  at  twenty- 
one,  and  if  he  die  before  twenty-one,  then  to  B. ;  and  A.  die  before 
he  attains  that  age,  B.  shall  be  entitled  to  the  legacy  immediately; 
for  he  does  not  claim  under  A.,  but  the  devise  over  is  a  distinct,  sub- 
stantive bequest,  to  take  effect  on  the  contingency  of  A.'s  dying 
during  his  minority  (e). 

But  where  legacies  were  given  to  A.  B.  and  C,  the  three  co- 
heiresses of  the  testator,  to  be  paid  at  their  respective  marriages, 
and  if  either  of  them  should  die,  her  legacy  to  go  to  the  suvivors, 
and  one  of  them  died  unmarried;  it  was  held,  that  the  survivors 
should  not  receive  the  legacy  of  the  deceased  before  their  respec- 
tive marriages:  for  the  condition,  though  not  repeated,  was  annex- 
[314]  ed  to  the  whole,  whether  it  accrued  by  survivorship,  or  by 
the  original  devise(y). 

A  bequest  of  stock  to  trustees,  upon  trust  to  pay  the  dividends 
from  time  to  time  to  a  married  woman,  for  her  separate  use,  is  an  un- 
limited gift  of  the  dividends,  and  consequently  passes  the  capital(^). 

Wtere  a  legacy  was  given  on  condition  to  be  void  in  case  the 
legatee  should  succeed  to  an  estate  in  the  event  of  the  death  of  A. 
without  issue  of  her  body,  payment  was  decreed  in  the  lifetime  of 
A.,  and  without  security  for  refunding(/i).  And  where  30,000/. 
South  Sea  annuities  were  given  to  trustees  in  trust  to  pay  the  divi- 
dends to  A.,  until  an  exchange  of  certain  lands  should  be  made  be- 
tween him  and  B.,  and  then  the  capital  to  be  equally  divided  between 
them,  and  B.  died  before  the  time  limited  by  the  will  for  making 
the  exchange  expired,  A.  was  held  to  be  absolutely  entitled  to  the 
whole  Iegacy(^). 

A  legacy  was  given  upon  condition  "  that  the  legatee  should 
"  change  the  course  of  life  he  had  too  long  followed,  and  give  up  low 

(c)  4  Bac.  Abr.  434,  in  note.     Har-         (e)  1  Eq.  Ca.  Abr.  299,300.  Laundy 

rison  v.  liuckle,  1  Stra.  238.  480.    Ko-  v.  Williams,  2  P.  Wms.  478. 
den  V.  Smith,  Ambl.  588.     Forinereau  (/)  Moore  v.  Godfrey,  2  Vern.  G20. 

V.  Fonnereau,  1  Ves.  118.     Green  v.  (,^)  Haig  v.  Swiney,  1  Sim.  &  Stu. 

Pigot,  1  Bro.  Oil.  Rep.  105.    Hearle  v.  487. 

Greenbank,  1  Ves.  307.     Crickett  v.  (//)  Fawkcs  v.  Gray,  18  Ves.  131. 

Dolby,  3  Ves.  jiin.  10.    Vid.  siipr.  171.         («)  I-owtlier  v.  (/avendish,  1  Eden's 

((i)  Gawler  V.  Standerwick,  2  Cox's  Hep.  99. 
Rep.  15. 


314  OF  THE  PAYMENT  OF  LEOACIES.  [nOOK  III. 

company,  frequenting  public  houses,"  &c.  The  court  held  that  it 
was  such  a  condition  as  it  would  cany  into  effect;  and  the  evidence 
not  being  conclusive,  an  inquiry  was  directed,  following  the  words 
of  the  bequest(/i').  But  where  an  allow^ance  was  bc([ueathed  to  a 
feme  covert,  on  condition  that  she  lived  apart  from  her  husband,  the 
court  held  the  bequest  to  be  good,  and  the  condition  void,  as  contra 
bonos  'mores{l).(\) 

A  legacy  was  given  to  three  persons,  to  be  paid  as  soon  as  the 
legatees  should  arrive  in  England,  or  claim  the  same,  provided  they 
should  arrive  or  claim  the  same  within  three  years  after  the  testa- 
tor's death;  and  if  they  should  not,  part  of  the  amount  of  the  legacies 
to  go  over.  The  legatee  over  claiming  the  legacy,  a  reference  was 
directed  to  the  Master,  to  inquire  whether  the  three  persons  had  ar- 
rived in  England,  or  claimed  the  legacy  within  the  three  years(7/i). 
Afterwards,  one  of  the  legatees  arrived  in  England,  and  made  his 
claim  after  the  time  specified:  it  was  held,  the  condition  was  not  per- 
formed, although  the  legatee  was  ignorant  till  then  of  the  will,  or  of 
the  testator's  death,  and  no  advertisement  had  been  made  for  lega- 
tees(7z). 

Where  a  legacy  was  given  on  condition,  that  the  legatee  married 
with  the  consent  in  writing  of  the  executors,  and  he  afterwards  mar- 
ried with  their  approbation,  but  it  was  not  expressed  in  writing:  it 
was  held,  that  the  legatee  was  entitled  to  the  legacy,  and  that  the 
consent  of  an  executor  who  had  not  acted  was  not  necessary(o). 

A  legacy  was  given  upon  condition  that  the  legatee  notified  to 
the  executor  of  the  testator  his  willingness  to  release  certain  claims, 
and  he  filed  his  bill.  The  court  held  that  he  had  forfeited  his  right 
to  the  legacy(7;).  But  where  a  testator  gave  to  his  son  for  life  the 
interest  of  a  mortgage  upon  an  estate  of  which  he  was  tenant  for  life 
in  remainder  at  the  testator's  death,  and  also  the  furniture  in  certain 
houses,  upon  condition  of  his  executing  a  release  of  all  claims  he 
might  have  upon  the  testator's  estate,  and  of  his  not  contesting  the 
will,  though  the  son  lived  fourteen  months  after  the  testator's  death 

(/f)  Tattersall  v.   Howell,  2  Mcri.         («)  Burgess  v.  Robinson,  3  Meri. 

Rep.  2G.  Rep.  7. 

(/)  Brown  v.  Reck,  1  Eden's  Rep.         (o)  Worthington  v.  Evans,  1  Sim. 

140.  &  Stu.  1G5. 

(m)  Burgess  v.  Robinson,  1  Madd.         (p)  Vernon  v.  Bethell,   2  Eden's 

172,  and  see  Careless  v.  Careless,  1  Rep.  110. 
Meri.  Rep.  384,  and  S.  C.  19  Ves.  601. 

(1)  A  testator,  by  his  will  dated  September  !25tb,  1815,  gave  to  his  daughter,  "  during 
her  separation  from  W.  C.  her  husband,  one  thousand  dollars  a  year,"  wbicli  he  charged 
on  his  real  estate.  AV.  C.  and  his  wife  were  living  separate  when  the  will  was  made,  but 
cohabited  together  in  February,  1  SI 5,  when  the  testator  made  a  codicil  to  his  will  (chang- 
ing only  the  executors),  and  also  at  his  death,  but  separated  immediately  after  his  de- 
cease, and  continued  to  live  separate  until  within  a  short  time  previous  to  filing  the  bill 
by  W.  C.  and  his  wife,  against  the  executors  for  the  legacy.  Held,  that  the  plaintiffs 
•were  not  entitled  to  the  legacy.  Cooper  et  ux.  v.  Remsen,  3  Johns.  Cha.  Rep.  382.  521. 
S.  C.  5  Johns.  Cha.  Rep.  459. 


CHAP.  IV.]  OF  THE.  PAYMENT  OF  LEGACIES.  314 

without  executing  a  release,  and,  upon  his  first  hearing  the  will,  had 
expressed  his  dissatisfaction,  and  an  intention  of  filing  a  bill;  yet  the 
circumstance  of  his  never  having  paid  any  part  of  the  interest  of  the 
mortgage,  his  having  entered  into  possession  of  the  furniture,  and 
exercised  acts  of  ownership,  together  with  certain  expressions  of  as- 
sent in  his  letters,  were  held  to  be  evidence  of  his  acceptance(5'). 

A  testator  authorised  his  executors,  at  any  time  before  T.  L.  at- 
tained the  age  of  twenty-six  years,  to  raise,  by  sale  of  a  sufficient 
part  of  certain  stock,  any  sum  of  money  not  exceeding  600/.,  and  to 
pay  and  apply  the  same  towards  the  preferment  or  advancement  in 
life,  or  other  the  occasions  of  T,  L.  as  the  said  executors  should 
think  proper;  and  at  the  age  of  twenty-six  he  gave  the  600/.  to  T.  L. 
absolutely.  The  executors  declined  to  act,  and  the  court  refused  to 
give  the  600/.  to  T.  L.  before  twenty-six,  without  referring  it  to  the 
Master  to  inquire  whether  T.  L.'s  situation  required  the  600/.  or 
any  part  thereof  to  be  advanced(r). 

The  next  object  of  inquiry  is,  to  whom  a  legacy  shall  be  paid. 
And  here  the  executor  must  be  careful  to  pay  it  into  that  hand  which 
has  authority  to  receive  it. 

It  is  a  general  rule,  that  he  has  no  right  to  pay  it  to  the  father,  or 
any  other  relation  of  an  infant,  without  the  sanction  of  a  court  of 
equity(5);(l)  and  even  in  the  case  of  an  adult  child,  such  payment  is 
not  good,  unless  it  be  made  by  the  consent  of  the  child,  or  be  con- 
firmed by  his  subsequent  ratification(/). 

Cases  occur  where  an  executor  has,  with  the  most  honest  inten- 
tions, paid  the  legacy  to  the  father  of  the  infant,  and  has  been  held 
liable  to  pay  it  over  again  to  the  legatee  on  his  coming  of  age.  And 
although  such  cases  have  been  attended  with  many  circumstances  of 
hardship  in  respect  to  the  executor,  yet  he  has  been  held  responsible, 
on  the  policy  of  obviating  a  practice  so  dangerous  to  the  interest  of 
infants,  and  so  naturally  productive  of  domestic  discord.  The  child 
must  in  case  of  such  payment  either  acquiesce,  or  resort  to  the  fa- 
ther; or,  which  is  in  effect  the  same,  [315]  institute  a  suit  against  the 
executor,  who  will  of  course  require  the  father  to  refund(i;).  Thus 
legacies  of  one  hundred  pounds  a-piece  were  bequeathed  to  four  in- 
fants; the  executor  paid  the  legacies  to  the  father,  and  took  his  re- 
ceipt for  them:  when  one  of  the  legatees  came  of  age,  who  was  about 
ten  years  old  at  the  time  of  payment,  the  father  told  him,  that  he 
had  such  a  legacy  of  his  in  his  hands,  but  could  not  pay  it  imme- 
diately, and  requested  him  not  to  apply  to  tiie  executor,  at  the  same 
time  promising  that  he  would  himself  pay  it.     The  son  acquiesced 

(y)  Earl  of  Northumberland  V.  Mar-  (/)   4  Bac.   Abr.   431.     Cooper  v. 

quis  of  Granby,  1  Eden's  Rep.  489.  Thornton,  3  Bro.  Ch.  Rep.  97. 

(r)  Lewis  V.  Lewis,  1  Cox's  Rep.  (w)  1  Kq.  Ca.  Abr.  300.     Cooper  v. 

1C2.  Thornton,  3  Bro.  Ch.  Rep.  9G.  18(i.    4 

(s)  4  Bac.  Abr.  429.     1  Chan.  Ca.  Burn.  Eccl.  L.  321.   Ilolknvay  v.  Col- 

245.  lins,  Chan.  Ca.  215.     3  Ch.  Ca.  1G8. 


(1 )  Genet  V.  'J'ullmad^^e,  JlJorrcll  v.  Dickey,  1  Jolnis.  Cliii.  Ucp.  3,  153. 


315  OF  THE  PAYMENT  OF  LEGACIES.  [iJOOK   III. 

for  fourteen  or  fifteen  years,  during  which  period  his  father  and  he 
carried  on  a  joint  trade,  and  then  became  bankrupts.  On  a  commis- 
sion taken  out  against  the  son,  this  legacy,  among  other  things,  was 
assigned  for  the  benefit  of  his  creditors;  and  the  assignee  fded  a  bill 
against  the  executor,  for  an  account  and  payment  of  the  legacy,  when 
it  was  decreed  accordingly  by  the  Master  of  the  Rolls,  but  without 
interest;  and  the  decree  affirmed  by  the  Lord  Chancellor  on  an  ap- 
peal. His  lordship,  however,  on  the  hardship  of  the  case,  ordered 
the  deposit  to  be  divided(/).  It  appears  from  the  registrar's  book, 
that  in  the  above  case  evidence  was  read,  that  the  testator  on  his 
death-bed  gave  direction,  that  the  executor  should  pay  the  legacies 
to  the  father  of  the  infants,  that  he  might  improve  the  money  for 
their  [31G]  benefit(?<).  But  although  that  circumstance,  if  true,  ren- 
dered the  case  still  harder,  yet  it  could  not  influence  the  decision, 
since  the  evidence  ought  not  to  have  been  received.  It  were  dan- 
gerous to  admit  proof,  that  a  legacy  given  to  one  person  was  ordered 
to  be  paid  to  another(?^J).  If  the  direction  had  appeared  on  the  face 
of  the  will,  the  decree,  doubtless,  would  have  been  different(a:?).  So, 
where  A.  left  a  legacy  of  a  hundred  pounds  to  each  of  the  three 
children  of  B.  and  appointed  C.  her  executor,  leaving  him  the  bulk 
of  her  estate,  provided  he  paid  those  three  legacies  within  a  year 
after  her  death:  The  defendant  within  that  period  paid  into  the  chil- 
dren's own  hands  their  several  legacies;  the  eldest  of  whom  was  then 
sixteen  years,  the  second  fourteen,  and  the  youngest  only  nine:  on 
her  coming  of  age,  they  filed  a  bill  against  the  executor  to  be  paid 
their  respective  legacies;  suggesting  that  their  father  had  embezzled 
the  money,  and  was  insolvent,  and  that  the  payment  was  a  fraud: 
The  defendant  in  his  answer  denied  all  knowledge  of  the  money's 
ever  having  come  to  the  father's  hands:  The  Lord  Chancellor  held 
at  first,  that  as  the  executor  paid  these  legacies  to  save  a  forfeiture  of 
what  he  himself  took  under  the  will,  he  ought  not  to  pay  them  over 
again;  but,  on  farther  consideration,  conceiving  the  point  to  be  very 
doubtful,  his  lordship  recommended  a  compromise;  and  the  defend- 
ant agreeing  to  [317]  pay  fifty  pounds,  to  be  divided  between  the 
three  plaintiffs,  without  costs  on  either  side,  they  were  ordered  to 
release  their  legacies(?/). 

The  rule,  however,  is  not  so  harsh,  as  that  in  all  possible  cases  an 
executor  shall  be  liable  to  pay  over  again  legacies  of  infants,  which 
he  shall  have  paid  to  their  parents(^).  Thus,  where  A.  bequeathed 
to  J.  S.  a  hundred  pounds  to  be  equally  divided  between  himself  and 
his  family,  the  executrix  paid  the  legacy  to  J.  S.  who  had  a  wife  and 
seven  children,  six  of  whom  are  adults,  and  the  seventh  an  infant: 

(0  Dagley  v.  Tolferry,  1  Eq.  Ca.  Ab.  v.  Thornton,  3  Bro.  Ch.  Rep.  90. 

300.     IP.  Wms.  285.     S.  C.  Gilb.  (iw)  Cooper  v.  Thornton,  3  Bro.  Ch. 

Rep.  103.    S.  C.  4  Burn.  Eccl.  L.  321.  Rep.  1)6.     Vid.  Maddox  v.  Staines,  2 

S.  C.  Vid.  also  PhiUps  v.  Paget,  2  Atk.  P.  Wms.  421. 

81,  and   Cooper  v.  Thornton,  2  Bro.  (.c)  Vid.  infr. 

Ch.  Rep.  1)6.  Cv)  I'liilips  v.  Paget,  2  Atk.  80,  81. 

(u)  1  P.  Wms.  286,  in  note.   Cooper  (z)  Ibid.  81. 


CHAP.  IV.]       OF  THE  PAYMENT  OF  LEGACIES.  317 

Eleven  years  after  the  youngest  had  come  of  age,  and  the  legacy 
never  having  been  demanded,  tliey  filed  their  bill  against  the  execu- 
trix for  the  same,  insisting  that  thfe  payment  to  their  father  was  in- 
valid: It  was  held,  that  according  to  the  terms  of  the  will,  the  legacy 
was  properly  paid  to  J.  S. ;  and  that  it  belonged  to  him  as  trustee  to 
divide  it:  And  even  on  supposition,  that  the  payment  was  wrong, 
the  great  laches,  and  long  acquiescence  of  the  plaintiffs  precluded 
them  from  all  remedy(ff).  But  where  A.  bequeathed  his  personal 
estate  to  trustees,  in  trust  to  pay  six  hundred  pounds  to  an  infant, 
and  directed  that  such  of  his  legatees  as  might  be  infants  at  the  time 
of  his  decease,  should  receive  interest  at  the  rate  of  five  ^jer  cent 
till  their  respective  legacies  should  be  paid,  namely,  at  their  age  of 
twenty-one  years;  it  was  holden,  that  the  executors  could  not  justify 
paying  any  part  [318]  of  the  principal  to  the  infant,  or  to  his  use, 
before  that  time,  except  for  absolute  necessaries(6). 

In  case  a  legacy  be  too  inconsiderable  in  point  of  value,  to  bear 
the  expence  of  an  application  to  the  court  of  cliancery,  it  seems  an 
executor  will  be  justified  in  paying  it  into  the  hands  of  the  infant,  or, 
which  amounts  to  the  same  thing,  to  the  father(c);  but  in  general  he 
is  not  warranted  in  so  doing,  unless  he  be  clearly  authorized  by  the 
will.  And  if  a  suit  be  instituted  in  the  spiritual  court  for  an  infant's 
legacy  by  the  father  to  have  it  paid  it  into  his  hands,  an  injunction(c^), 
or  prohibition(e),  will  be  granted. 

But  an  executor  may  discharge  himself  from  all  responsibility  on 
this  head  by  virtue  of  the  stat.  36  Geo.  3.  c.  52,  §  32,  by  which  it  is 
enacted,  that  where,  by  reason  of  the  infancy,  or  absence  beyond  the 
seas,  of  any  legatee,  the  executor  cannot  pay  a  legacy  chargeable 
with  duty  by  virtue  of  that  act,  (that  is  to  say)  given  by  any  will  or 
testamentary  instrument  of  any  person  who  shall  die  after  the  pass- 
ing of  that  act,  it  shall  be  lawful  for  him  to  pay  sucli  legacy,  after 
deducting  the  duty  chargeable  thereon,  into  the  Bank  of  England, 
with  the  privity  of  the  accountant-general  of  the  court  of  chancery, 
to  be  placed  to  the  account  of  the  legatee,  for  payment  of  wiiich  the 
accountant-general  shall  give  his  [319]  certificate,  on  production  of 
the  certificate  of  the  commissioners  of  stamps  that  the  duty  thereon 
hath  been  duly  paid;  and  such  payment  into  the  bank  shall  be  a  suf- 
ficient discharge  for  such  legacy,  which,  when  paid  in,  shall  be  laid 
out  by  the  accountant-general  in  the  purchase  of  i\\vcc  per  cent  con- 
solidated annuities,  which,  with  the  dividends  thereon,  shall  be  trans- 
ferred or  paid  to  the  person  entitled  thereto,  or  otherwise  applied  for 
his  benefit,  on  application  to  the  court  of  chancery  by  petition,  or 
motion,  in  a  summary  way. 

(a)  Cooper  v.  Thornton,  3  Bro.  Ch.  Seton  v.  Seton,  2  Bro.  Ch.  Rep.  613. 

Rep.  96.  Off.  Ex.  219,  220.     Bilson  v.  Saun- 

{b)  4    Bac.   Abr.   433.     Davies  v.  ders,  Biinb.  210. 

Austen,  3  Bro.  Ch.  Rep.  178.  {d)  Rotlicram  v.  Fanshaw,  3  Atk. 

(c)  4  Burn.  Eccl.   L.  321.     1   Ch.  629.  Per  Ld.  Hardwicko,  C.  arguendo. 

Ca.  215.     Philips  v.  Paget,  2  Atk.  HI.  (c)  4  Bac.  Abr.  42'J,  in  note.  Goilb. 

Com.  Dig.  Chancery,  (3  G.  G.)    Vid.  243. 
27 


319  OF  THE  PAYMENT  OF  LEGACIES.  [rOOK  III. 

But  the  executor  is  not  bound  so  to  pay  the  legacy  into  the  bank 
till  the  expiration  of  a  year  from  the  testator's  death. 

Where  personal  ])roperty  is  bequeathed  for  life,  with  remainder 
over,  and  not  specifically,  it  is  a  general  rule  that  it  be  converted  into 
three  per  cents,  subject  in  the  case  of  a  real  security  to  an  inquiry, 
whether  it  will  be  for  the  benefit  of  all  parties(y ). 

But  this  general  rule  does  not  attach  upon  property  of  a  testator, 
who  makes  his  will,  and  dies  in  India,  leaving  property  and  a  family 
there,  unless  the  parties  come  to  this  country,  and  then  the  person  in 
remainder  is  entitled  to  have  the  fund  brought  here  and  invested(^). 

It  has  been  decided,  that  if  an  executor  have  a  general  power  to 
divide  a  sum  of  money  among  children  at  his  discretion,  and  he 
make  an  unreasonable  disposition,  it  will  be. controlled  in  a  court  of 
equity(//).  As,  where  A.  having  two  daughters,  one  by  a  former 
marriage,  and  the  other  by  a  second,  devised  his  estate  to  his  wife, 
to  be  distributed  between  his  daughters  as  she  should  think  lit,  and 
she  gave  a  thousand  pounds  to  her  own  daughter,  and  only  a  hundred 
to  the  other,  an  equal  distribution  was  decreed(/).  In  like  manner 
where  A.  having  appointed  his  two  daughters  his  executrices,  gave 
them  four  hundred  pounds,  to  be  distributed  among  themselves  and 
their  brothers  and  sisters,  according  to  their  necessity,  as  the  execu- 
trices, in  their  discretion,  should  think  fit;  the  court  settled  the  dis- 
tribution, and  decreed  a  double  share  to  one  [320]  of  the  children,  as 
standing  in  greater  need  of  it(A:).  But  where  the  testator  left  a  le- 
gacy to  his  wife,  and  executrix,  to  be  disposed  of  among  their  chil- 
dren in  such  manner  as  she  should  think  lit;  it  was  held  that  if  she 
make  an  inequality,  the  court  will  not  enter  into  the  motives  of  it 
unless  it  be  illusory,  and  if  she  give  a  mere  trifle  to  one  of  them; 
and  even  in  that  case  if  the  child's  misbehaviour  has  been  very  gross, 
it  shall  not  be  varied.  And  it  seems  now  settled,  that  in  cases  where 
an  executor  has  such  a  discretionary  power,  he  may  give  a  larger 
share  to  one  of  the  objects  than  to  another,  provided  the  share  of 
both  be  substantial,  and  not  illusory  or  merely  nominal(/). 

Where  a  legacy  was  given  to  A.,  but  if  the  executors  after  named 
should  think  it  more  for  his  advantage  to  have  it  placed  out  and  to  pay 
him  the  interest  for  life,  as  they  in  their  discretion  should  think  fit, 
and  directing  that  after  his  decease  the  said  sum  should  be  divided 
among  his  children,  and  for  default  of  children  over:  one  of  the  ex- 
ecutors being  dead,  and  the  other  having  renounced,  the  legacy  was 
held  to  be  absolute  in  the  legatee(7w). 

(/)  Howe  V.  Earl  of  Dartmouth,  7  City  of  London  v.  Richmond,  2  Vern. 

Ves.  jun.  137.  421. 

{g)  Holland  v.  Hughes,    16   Ve§.  (/)  Maddison  v.  Andrews,  1  Ves.  57. 

jun.  111.  Vid.  also  Alexander  v.   Alexander,  2 

(A)  4  Bac.  Abr.  340.    Gibson  v.  Kin-  Ves.  640.     Swift  v.  Gregson,  1  Term 

ven,  1  Vern.  66.     Thomas  v.  Thomas,  Rep.  432.     Nisbett  v.  Murray,  5  Ves. 

2  Vern.  513.     Alexander  v.  Alexander,  jun.  149.     Longmore  v.  Broom,  7  Ves. 

2   Ves.   640.     Upton   v.  Prince,   Ca.  jun.  124,  and   Butcher  v.  Butcher,  9 

Temp.  Talb.  72.  Ves.  jun.  382. 

(/)  Wall  V.  Tlmrborne,  1  Vern.  355.  (m)  Keates  v.  Burton,  14  Ves.  jun. 

(/,)  Com.  Dig.  Chan.  (4  W.  11.)  434. 


CHAP.  IV.]       OF  THE  PAYMENT  OF  LEGACIES.  320 

A  testator  expressed  his  will  and  desire,  that  one-third  of  the 
principal  of  his  estate  and  effects  should  be  left  entirely  to  the  disposal' 
of  his  wife,  among  such  of  her  relations  as  she  might  think  proper, 
after  the  death  of  his  sisters.  The  wife  died  without  making  any 
disposition,  and  it  was  held  a  trust  for  the  next  of  kin  at  the  time  of 
her  death(/z). 

If  a  legacy  be  given  to  a  married  woman,  it  must  be  paid  to  the 
husband.  So  where  a  legacy  was  given  to  a  married  woman  living 
separate  from  her  husband  with  no  maintenance,  and  the  executor 
paid  it  to  the  wife,  and  took  her  receipt  for  it,  yet  on  a  suit  instituted 
by  the  husband  against  the  executor,  he  was  decreed  to  pay  it  over 
again  with  interest(o).  It  hath  also  been  adjudged,  that  if  the  hus- 
band and  wife  are  divorced  u  mensd  et  thoro  and  the  legacy  is  left 
[321]  to  her,  the  husband  alone  may  release  \i{p);  and,  consequently, 
to  him  alone  it  is  payable.  But  the  executor,  in  cases  where  the 
husband  has  made  no  provision  for  the  wife,  may  decline  paying 
such  legacy,  if  it  amount  to  the  sum  of  two  hundred  pounds,  unless 
he  will  make  an  adequate  settlement  on  her(y).  Nor  will  the  court 
of  chancery  interpose  in  his  favour,  but  on  the  same  terms(r);  unless 
the  wife  appear  in  court  and  consent  to  his  receiving  it(6').  And  if  a 
woman,  who  is,  or  has  been  married,  i-s  entitled  to  a  legacy,  the  court 
expects  a  positive  affidavit,  that  the  legacy  has  not  been  in  any 
manner  settled,  before  it  will  direct  payment  to  her(/). 

Nor  does  the  court  confine  its  interposition  in  favour  of  the  wife, 
and  compel  a  provision  for  her  against  those  persons  only  who  are 
seeking  to  obtain  her  property  by  the  assistance  of  the  court;  but  in 
extension  of  the  principle  of  those  cases,  in  which  equity  restrains 
the  husband  from  proceeding  in  the  ecclesiastical  court,  because  that 
jurisdiction  cannot  enforce  a  settlement  for  the  wife,  will  entertain  a 
bill  by  a  married  woman  against  an  executor  or  administrator,  and 
the  husband  praying  for  a  provision  out  of  a  legacy  bequeathed  to 
her,  or  out  of  a  share  of  an  intestate's  estate  to  whom  she  is  next  of 
kin(^<). 

If  a  legacy  be  left  to  the  senior  six  clerk,  to  be  divided  between 
himself  and  the  other  six  clerks,  it  seems  that  it  ought  to  be  paid  to 

(n)  Birch  v.  Wade,  3  Ves.  &  Bea.  (r)  Milner  v.  Cohitiar,  2  P.  Wms. 

198.  G3y.     Adams  V.  Peirce,  3P.  Wins.  11. 

(o)  Palmer  v.  Trevor,  1  Vern.  201.  Brown  v.  Elton,  ib.  202. 

4  Burn.  Eccl.  L.  332.  L.  of  Test.  205.  (s)  Willats  v.  Cay,  2  Atk.  67.  Mil- 

(p)  4  Bac.  Abr.  433.     1  Roll.  Abr.  ner  v.  Calmer,  2  P.  Wins.  641.     Par- 

313.     2Roll.  Abr.  301.     S.C.Moore,  sons  v.  Dunne,  2  Ves.  60.     Sod  vid. 

665.     Rye   v.   Fuljambe,    683.     Ste-  ex  parte  Higharn,  2  Ves.  579. 

phens  V.  Totty,  Cro.  Eliz.  908.    Ste-  (/)  HoKgh  v.  Ryley,  2  Cox's  Rep. 

phens  V.  Totty,  Noy,  45.     Motam   v.  157. 

Motam,    1  Roll.  Rep.  426.     S.  C.  5  (w)  Lady  Elibank  v.  Montolieu,  5 

Buls.  264.     (Chamberlain  v.  Hewson,  Ves.  jun.  737.    See  Wright  v.  Rutter, 

Salk.  115,pl.  4.     S.  C.Ld.Raym.73.  2  Ves.  jun.  276.     Meales  v.  .Meales,  5 

S.  C.  5  Mod.  69,  and  12  Mod.  89.  Ves.   jun.  517,  in  note,   and  Carr.  v. 

{q)  Lady  Elibank  v.  Montolieu,  5  Taylor,  10  Ves.  jun.  578,  and  infr.  490. 
Ves.  jun.  742,  in  note. 


321  OF  THE  PAYMENT  OF  LEGACIES.  [bOOK  III. 

the  senior,  and  that  it  would  not  be  incumbent  on  the  executor  to 
make  any  inquiry  respecting  the  others(?/;). 

Commissioners  of  Bankrupt  may  assign  a  legacy  left  to  a  bankrupt 
before  his  bankruptcy (.t);  and  although  it  be  left  after  his  certificate 
has  been  signed  by  the  creditors  and  commissioners,  if  before  its  al- 
lowance by  the  Lord  Chancellor(_?y);  consequently,  in  such  case  the 
legacy  must  be  paid  to  the  assignees. 

Although,  as  it  has  been  already  stated,  payment  by  an  executor 
of  a  debt  by  simple  contract,  before  the  breacli  of  the  condition  of  a 
bond,  is  good,  and  shall  not  be  impeached  by  its  happening  after- 
wards(r),  yet  payment  of  a  legacy  under  the  same  circumstances 
[322]  shall  not  be  allowed.  It  was,  indeed,  formerly  held,  that  such 
bond  should  not  hinder  the  payment  of  a  legacy,  because  it  was  un- 
certain whether  the  bond  would  be  ever  forfeited,  but  that  the  ex- 
ecutor should  pay  the  legacy  conditional!}*,  and  take  security  of  the 
legatee  to  I'efund  in  the  event  of  a  forfeiture  of  the  obligation(«). 
And  in  all  cases,  where  a  suit  was  instituted  in  the  spiritual  court  to 
compel  an  executor  to  pay  a  legacy  without  a  security  from  the  lega- 
tee to  refund  in  case  of  a  deficiency  of  assets,  the  court  of  chancery 
would  grant  a  prohibition(6):  yet  that  practice  no  longer  exists. 
Equity  will  not  now  interfere(c),  but  will  compel  a  legatee  to  refund, 
where  the  estate  proves  insufficient,  whether  security  has  been  given 
for  such  a  purpose  or  not(f/). 

A  legacy  must  be  paid  in  the  currency  of  the  country,  in  which 
the  testator  was  resident  at  the  time  of  making  the  will.  Thus  it  has 
been  decided,  that  where  a  party  living  in  Ireland,  or  in  the  West 
Indies,  gives  legacies  by  his  will  generally,  they  are  payable  accord- 
ing to  the  currency  of  those  respective  countries(e).  Nor  is  the  case 
varied  by  the  legatee's  residing  in  England(/);  nor  by  [323]  the 
testator's  having  left  effects  partly  here  and  partly  abroad,  unless  he 
shall  have  separated  the  funds,  and  charged  the  legacies  on  his  Eng- 
lish property  (;§•).  If  he  has  given  some  legacies  described  as  sterling, 
and  others  without  such  description,  the  former  are  payable  in  ster- 
ling money,  the  latter  in  the  currency  of  the  country  where  the  tes- 
tator resided  (A).     In  like  manner,  if  a  testator  living  in  England,  be- 

(z«)  Per  M.  R.  arguendo,  Cooper  v.  Day,  Ambl.  160. 

Thornton,  3  Bro.  Ch.  Rep.  99.  (f/)  Noel  v.  Robinson,  1  Vern.  93, 

(x)  Cooke's  B.  L.  371.     Com.  Dig.  94.     Hawkins  v.  Day,  Ambl.  162. 

Bankrupt  (D.  16.)  Toulson  v.  Grout,  (e)  Holditch   v.   jMist,  1  P.  Wms. 

2  Vern.  433.  C96,  note  2.     2  P.  Wms.  88,  89,  note 

(y)  Tredway  V.  Bourn,  2  Burr.  716.  1.     Saunders   v.  Drake,   2  Atk.  465. 

{z)  Supr.  282.  Pearson  v.  Garnet,  2  Bro.  Ch.  Rep.  38. 

(a)  3  Bac.  Abr.  84.     1  Roll.  Abr.  Malcolm  v.  Martin,  3  Bro.  Ch.  Rep.  50. 

928.     4  Burn.  Eccl.  L.  332.     Noel  v.  Cockerell  v.  Barber,  16  Ves.  jnn.  461. 

Robinson,  2  Ventr.  358.  (/)  Saunders  v.  Drake,  2  Atk.  466. 

(6)    4   Burn.    Eccl.    L.    332,    333.  {g)    Ibid.      Pearson   v.    Garnet,   2 

Grove  v.  Banson,  1    Chan.   Ca.  149.  Bro.  Ch.  Rep.  47. 

Noel  V.  Robinson,  2  Ventr.  358.     S.  (//)   Saunders  v.  Drake,  2  Atk.  465. 

C.  1  Vern.  93.  Pearson  v.  Garnet,  2  Bro.  Ch.  Rep.  38. 

(c)  Anon.  1  Atk.  491.     Hawkins  v.  Malcolm  v.  Martin,  3  Bro.  Ch.  Rep.  50. 


CHAP.  IV.]  OF  THE  PAYMENT  OF  INTEREST.  323 

queath  a  legacy,  whether  of  a  single  sum  of  monej^,  or  of  an  annuity 
charged  on  lands  in  another  country,  it  shall  he  paid  in  England,  and 
in  English  money,  and  without  any  deduction  for  the  expences  of 
its  remittance(z). 

In  regard  to  the  payment  of  interest  on  a  legacy,  it  was  formerly 
held,  that  in  case  of  a  vested  legacy  charged  on  lands  yielding  im- 
mediate profits,  and  no  time  of  payment  mentioned  in  the  will,  in- 
terest should,  in  respect  of  such  profits,  be  made  payable  from  the 
death  of  the  testator(^) ;  or  that  a  legacy  given  out  of  a  personal  es- 
tate consisting  of  mortgages  bearing  interest,  or  of  money  in  the  pub- 
lic funds,  the  dividends  of  which  are  paid  half-yearly,  should,  for  the 
same  reason  carry  interest  from  the  same  period(/);  or  that  interest 
on  a  specific  legacy,  where  it  produces  interest,  should  be  computed 
from  the  time  of  the  testator's  death:  It  being  severed  from  the  rest 
of  his  estate,  and  specially  appropriated  for  the  [324]  benefit  of  the 
legatee,  it  should  therefore  carry  interest  immediately(wi).  But  if  a 
legacy  were  given  generally  out  of  a  personal  estate,  and  no  time 
specified  by  the  testator,  such  legacy  should  carry  interest  only,  from 
the  expiration  of  the  year  next  after  his  decease,(l)  on  the  princi- 
ple that  the  executor  might  be  reasonably  allowed  that  time  for  the 
collecting  of  the  effects(;?,).  So  it  was  held,  that  if  a  legacy  were 
given,  charged  on  a  dry  reversion,  it  should  carry  interest  from  a 
year  next  after  the  death  of  the  testator:  inasmuch  as  a  year  was  a 
competent  time'for  a  sale(o).  But  the  rule  that  the  payment  of  in- 
terest should  depend  on  the  fund's  being  productive  or  barren,  is  now 
exploded:  and,  generally  speaking,  interest  for  a  legacy  is  payable 
only  from  a  year  after  the  death  of  the  testator:(2)  Although  he  should 
have  left  stock  only,  and  no  other  property,  yet  now  no  interest 
would  be  given,  upon  legacies  bequeathed  by  him,  till  the  end  of  a 
year  next  after  his  death(/;). 

Simple  contract  debts  of  another  person,  charged  by  the  will  of  a 
testator  upon,  his  real  estates,  are  legacies,  and  carry  interest  from  the 
death  of  the  testator  at  four/?er  cenf{q). 

If  an  annuity  be  given  by  the  will,  it  shall  commence  immediately 
from  the  testator's  death,  and,  consequently,  the  first  payment  shall 

(i)  Wallisv.  Brightwell,  2P.  Wms.  (m)  Lawson  v.  Stitch,  1  Atk.  508. 

88.  Holditch  V.  Mist,  1  P.  VVms.  696.  Sleechv.  Thorington,  2  Ves,  563. 

(A-)  4  iiac,  Abr.  439.     Maxwell  v.  {n)  Maxwell  v.  VVettenl.all,  2    P. 

Wettenhall,  2   P.  Wms.  26.     2  Bl.  Wins.  26,  27.     Lloyd  v.  Williams,  2 

Com.  513.  Atk.  108. 

(/)  Maxwell   v.    Wettenhall,   2  P.  («)  Maxwell   v.   Wettenhall,  2  P. 

Wms.  26,  and  note  2.     Lloyd  v.  Wil-  Wms.  26. 

liams,  2  Atk.  108.     Becktbrd  v.  To-  {p)  Gibson  v.  Bott,  7  Ves.  jun.  96, 

bin,  1  Ves.  308.     Bilson  v.  Saunders,  97. 

Bunb,  210.     Stonehouse  v.  Evelyn,  3  (7)  Shirt  v.  Westby,  16  Ves.  jun. 

P.  Wms.  253.  393. 


(1)  1  Binn.  475.     l4Serg.  &  Kawle,  238. 

(2)  See  CogdelVs  Ex.  v.  CogdcWs  Heirs,  3  Di-sans.  Itep.  387.     Ingyaham  v.  PosieWs 
Ex.,  OilUm  V.  Tumlmll,  I  M'Cord's  Cha.  liei).  04,  14S. 


324  ON  LEGACIES.  [rOOK  III. 

be  made  at  the  expiration  of  a  year  next  after  that  event.  But  if  a 
sum  of  money  be  directed  by  the  will  to  be  placed  out  to  produce 
an  annuity,  whether  that  is  to  be  considered  as  a  legacy  payable  at 
the  end  of  the  year  as  an  annuity  payable  from  the  testator's  death, 
seems  to  be  a  doubtful  point(r). 

An  annuity,  however,  given  by  will,  with  a  direction  that  it  shall 
be  paid  monthly,  the  first  payment  is  to  be  made  at  the  end  of  a 
month  after  the  testator's  death(6').(l) 

If  a  portion  of  the  testator's  estate  not  required  for  the  payment  of 
debts  and  legacies  be  invested  at  the  time  of  his  death  upon  securi- 
ties carrying  interest,  the  tenant  for  life  of  the  residue  is  entitled  to 
such  interest  from  the  time  of  the  death  of  the  tcstator(^). 

Although  the  interest  of  residue  goes  with  the  capital,  that  of  par- 
ticular legacies  does  not,  even  supposing  it  to  be  the  payment,  and 
not  the  vesting,  that  is  postponed.  Therefore,  where  no  direction  is 
given  as  to  surplus  interest,  and  the  capital  is  made  payable  at  a  fu- 
ture time,  the  surplus  interest  falls  into  the  residue(«). 

[3^5]  If  a  legacy,  whether  vested  or  not,  be  payable  on  a  certain 
day,  and  the  will  be  silent  in  respect  to  interest,  it  is  a  general  rule, 
that  the  interest  shall  commence  only  from  that  time:  for  it  is  given 
for  delay  of  payment,  and,  consequently,  till  the  day  of  payment 
arrives,  no  interest  can  accrue  to  the  legatee(i').(2)  Hence,  as  we 
have  seen{iv),  if  a  legacy  be  left  to  A.  to  be  paid  at  twenty-one,  and 
he  die  before,  his  representative  shall  wait  till  he- would  have  at- 
tained that  age,  unless  it  were  made  payable  with  interest.  Nor  is 
it,  in  such  cases,  a  question  of  construction,  as  whether  the  payment 
is  suspended  on  account  of  the  imbecility  of  the  party,  or  with  a 
view  to  the  benefit  of  the  estate.  The  rule  I  have  just  stated  is  tech- 
nical, established  in  the  ecclesiastical  court,  and  adopted  by  the  court 
of  chancery  in  numerous  adjudications(a;).  If  legacies  are  given  to  A. 
and  B.,  each  to  be  paid  to  them  at  their  respective  ages  of  twenty-three 
years,  and  if  they  should  die  before  that  time,  then  their  respective 
legacies  to  sink  into  the  residue  of  the  testator's  personal  estate, 
such  legacies  do  not  carry  interest,  and  no  maintenance  can  be  al- 

(r)  Gibson  v.  Bott,  7  Ves.  jun  96,  Ves.  307.     Smell  v.  Dee,  2Salk.415. 

97.  pi-  2.    2  P.  Wms.  481,  note  1.    Green 

(s)  Houghton  V.  Franklin,  1  Sim.  &  v.  Pigot,  1  Bro.  Ch.  Rep.  105.     Ash- 

Stu.  390.  burner  v.  M'Guire,  2  Bro.  Ch.  Rep. 

(/)  Angerstein  v.  Martin,   1  Turn.  113.     Crickett  v.  Dolby,  3  Ves.  jun. 

232.     Hewitt  V.  Morris,  ib.  211.  10.     Tyrrell  v.  Tyrrell,  4  Ves.  jun.  1. 

(m)  Leake  v.  Robinson,   2   Meriv.         (w)  Supr.  171.  313. 
Rep.  384.  (x)  Tyrrell  v.  Tyrrell,  4  Ves.  jun. 

(r)  Heath   v.  Perry,   3   Atk.   102.  3,  4,  5. 
Hearle  v.    Greenbank,  716.   S.  C.  1 


(1)  So  where  one  bequeathed  to  his  daughter  A.  "the  interest  of  400/.  to  be  paid  to  her 
annually  during  her  natural  life,  it  was  held  tliat  the  first  payment  was  to  be  made  at  the 
end  of  a  year  from  the  testator's  deatli.     Eyre  v.  Gohling,  5  Binn.  475. 

(2)  Bitzer'a  Ex.  v.  Jfah7i  et  Jix.  14  Serg.  8c  llawle,  '232.  Lupton  v.  Liipton,  2  Johns. 
Cha.  Rep.  628.     Daives  v.  Sivan,  4  Mass.  Rajf.  215, 


CHAP.  IV.]      OF  THE  PAYMENT  OF  INTEREST.  325 

lowed  to  the  legatees(y).  But  if  a  legacy  be  given  to  A.  to  be  paid 
at  twenty-one,  and  if  he  should  die  before  attaining  that  age,  then  to 
B.,  and  A.  die  before  twenty-one,  several  years  after  the  testator,  B. 
is  entitled  to  interest  on  the  legacy  from  the  death  of  A.;  for  though 
in  such  case  it  were  objected  that  tliis  being  as  a  new  substantive  le- 
gacy to  B.,  the  executor  ought  to  have  a  year's  time  for  the  payment 
of  it:  yet  the  court  held,  that  must  be  intended  to  be  from  the  death 
of  the  testator,  whereas  in  that  case  the  testator  had  been  dead  much 
longer(z). 

But  the  principle  does  not  extend  to  all  cases:  It  does  not  apply 
where  the  legatee  was  the  child  of  the  testator:  there  the  court  will 
not  postpone  the  payment  of  interest,  even  till  a  year  after  the  death 
of  the  parent,  but  will  order  it  immediately ;  since,  by  the  law  of  na- 
ture, he  was  obliged  to  provide  not  only  a  future  but  a  present  main- 
tenance for  his  child,  and  shall  not  be  presumed  to  have  meant  to 
leave  him  destitute(«).(l)  But  if  a  father  gives  a  legacy  to  a  child 
payable  at  a  future  day,  and  makes  an  express  provision  for  mainte- 
nance out  of  another  fund,  the  legacy  shall  not  carry  interest  until 
the  time  of  payment(6). 

So  where  a  testator  directed  his  executors,  as  soon  as  they  should 
think  proper  after  his  decease  to  sell  as  much  stock  as  would  pro- 
duce 12,000/.,  and  invest  the  same  in  land,  upon  trust  to  receive  the 
rents  of  the  land  when  purchased,  and  the  interest  and  dividend  of 
the  12,000/.  until  the  estate  was  purchased,  and  pay  the  same  in  equal 
moieties  between  his  two  daughters  for  their  lives,  with  remainder 
over;  the  court  held,  that  the  daughters  were  not  to  take  the  interest 
until  the  12,000/.  was  raised  by  a  sale  of  the  stock,  and  that  this  being 
to  be  done,  "as  soon  as  the  executors  should  think  proper  after  his 
decease,"  amounted  to  the  same  thing  as  a  direction  to  raise  and  pay 
a  legacy  as  soon  as  the  executors  should  find  it  convenient.  That 
the  court  adopted  a  year  as  the  rule  of  convenience,  and  that  the 
legacy  therefore  could  not  be  raised  till  the  end  of  the  year(c). 

And  where  the  testator  devised  estates  in  Jamaica  to  trustees  and 
their  heirs,  in  trust  to  maintain  and  educate  his  sons  during  their  mi- 
nority, and  his  daughter  until  the  age  of  twenty-one  years,  or  day  of 
marriage,  which  should  first  happen,  and  subject  thereto,  devised  the 
estates  to  his  sons,  charged  with  the  payment  of  10,000/.  to  his 
daughter,  in  case  she  should  live  to  attain  her  age  of  twenty-one 
years,  the  same  to  carry  interest  from  the  time  of  her  attaining  such 
age  of  twenty-one,  at  the  rate  of  61.  per  cent,  and  to  be  paid  by  in- 
stalments, the  first  payment  to  be  made  when  and  if  she  should  at- 

(y)    Descrambes    v.    Tomkins,    1  by,  3  Vcs.  jun.  13.     See  Chambers  v. 

Cox's  Rep.  133.  •  Goldwin,  11  Ves.  jun.  1. 

(2)  Laundy  V.  Williams,  2  P  Wms.  (h)  Wynch   v.    Wynch,    1    Cox's 

481.  Rep.  433. 

(«)  Butler    V.    J3utler,   3  Atk.  60.  (c)  licnson  v.  Maude,  6  Madd.  Rep. 

Heath  V.  Perry,  102.     Crickettv.  Dol-  15. 


(1)  1  Binn.  475.    14  Serg.  &  Ilawle,  238. 


325  ON  LEGACIES.  [bOOK  III. 

tain  twenty-one;  and  the  daiiglitcr  married  at  the  age  of  eighteen 
years.  Lord  Eldon  lield,  tliat  the  testator  having  expressly  given 
interest  from  the  period  of  the  daughter's  majority  to  the  time  when' 
the  legacy  was  to  he  paid,  could  not  mean  that  the  child  should  have 
nothing  during  the  interval  between  her  marriage  and  her  attaining 
the  age  of  twentj-one  years,  and  therefore  decreed  her  a  reasonable 
maintenance  out  of  the  assets  for  that  period(f/). 

And  where,  a  testator  gave  a  legacy  to  his  daughter,  to  be  paid  to 
her  at  twenty -one  or  marriage,  without  interest  for  the  same  in  the 
meantime,  but  if  she  died  before  twenty-one  or  marriage,  then  tiie 
legacy  was  not  to  be  raised,  but  was  to  sink  into  the  residue  of  his 
personal  estate,  and  he  directed  that  out  of  the  interest  of  the  legacy 
certain  sums  of  money  should  be  applied  for  the  maintenance  of  his 
daughter:  it  was  held  that  the  interest  of  the  legacy  beyond  the 
maintenance  was  vested  in  the  daughter,  and  must  accumulate  for 
her  benefit(6). 

[326]  Whether  a  legatee,  if  a  natural  child,  be  also  comprised 
v^rithin  the  exception,  is  not  so  clear.  Lord  Harwicke,  C.  expressed 
an  opinion  in  the  negative,  as  well  in  the  principle  of  law,  which 
recognizes  no  relationship  in  such  child,  as  also  on  the  general  po- 
licy of.  encouraging  marriage,  and  discountenanchig  immorality(c). 
In  a  recent  case,  the  Master  of  the  Rolls  intimated,  that  illegitimate 
children  were  to  be  admitted  to  the  same  benefit(^/).  But  in  a  sub- 
sequent case,  the  Court  of  Exchequer  held  that  they  are  not(e).  If, 
however,  it  can  be  implied  from  the  wording  of  the  will  that  the 
testator  intended  it,  interest  will  be  allowed  from  the  testator's 
death(/). 

Whether  a  grandchild  shall  be  thus  favoured,  is  a  point  likewise 
on  which  there  has  been  a  difference  of  opinion:  such  advantage 
has  been,  in  several  instances,  denied  to  him(^).(l)  But  his  Ho- 
nour, in  the  case  just  alluded  to,  appears  to  have  considered  him  as 
on  the  same  footing  with  a  child:  And  that  opinion  has  been  con- 
firmed by  subsequent  adjudications(A).  The  widow  of  the  testator 
will  not  be  entitled  to  interest  from  the  time  of  his  death(/),  A 
legacy  to  a  nephew,  payable  at  twenty-one,  is  clearly  comprehended 
under  the  general  rule,  and  shall  carry  interest  only  from  the  time 

(a)  Chambers  v.  Goldwin,  11  Ves.  330.  Butler  v.  Butler,  3  Atk.  59.  4 
jun.  1.  Bro.  Ch.  Rep.  149,  in  note,  and  Des- 

(b)  Carey  v.  Askew,  1  Cox's  Rep.  crambes  v.  Tomkins,  1  Cox's  Rep.  133. 
243.                                          '  {h)  Crickett  V.  Dolby,  3  Ves.  jun. 

(c)  Hearle  v.Greenbank,  1  Ves.  310.      12.      5  Ves.  jun.  194,  195,  in  note. 
l4)  Crickett  v.  Dolby,  3  Ves.  jun.      Collins  v.  Blackburn,  9  Ves.  jun.  470, 

12.  and  see  Hill  v.  Hill,  3  Ves.  &  Bea. 

(e)  Lowndes  v.  Lowndes,  15  Ves.  183. 

jun.  301.  (?)  Lowndes  v.  Lowndes,  15  Ves. 

(/)  Hill  V.  Hill,  3  Ves.  &  Bea.  183.  jun.  301.     Stent  v.  Robinson,  12  Ves. 

Ig)  Haughton  v.  Harrison,  2  Atk.  jun.  461. 


(1)  See  Johns.  Cha.  Rep.  628.     Van  Bramer  v.  Iloffnuni'a  Ex.  2  Johns.  Ca.  200. 


CHAP.  IV.]  OF  INTEREST  ON  LEGACIES.  326 

of  payment(A^).  And  a  legacy  to  the  wife  of  a  nephew,  expressly 
given  for  the  maintenance  of  herself  and  children,  she  being  sepa- 
rated from  her  husband,  shall  only  carry  interest  from  the  end  of  the 
year  after  the  testator's  death;  and  the  court  considered  it  would  be 
introducing  a  new  rule,  particularly  as  the  legatee  was  adult,  if  it 
were  held  otherwise(/).  But  the  rule  is  not  applicable  to  a  bequest 
of  a  residue,  subject  to  be  divested  on  a  contingency;  for  it  would 
be  absurd  to  say  the  testator  meant  to  die  intestate  as  to  the  pro- 
duce, when  he  has  given  a  vested  interest  in  the  capital(?w).  If  a 
legacy  be  left  to  an  infant  payable  at  twenty-one,  and  devised  over 
on  his  dying  before  he  attains  that  age,  and  such  event  happens,  the 
[327]  interest  accumulated  from  the  death  of  the  testator  to  that  of 
the  infant  shall  go  to  his  representative,  and  not  to  the  remainder- 
•man(??.).  And  where  legacies  were  given  to  infants,  payable  at  twen- 
ty-one, with  benefit  of  survivorship  in  the  event  of  death  under  that 
age,  and  a  power  to  the  executors  to  apply  any  part  of  the  legacies 
towards  the  maintenance  of  the  legatees,  the  legacies  were  held  to 
bear  interest  from  the  death  of  the  testatrix;  the  infants  being  her 
cousins,  and  destitute  of  other  provision(o). 

If  the  father  of  an  infant  legatee  be  living,  he  is  bound  by  the 
municipal  law,  as  well  as  by  the  ties  of  nature,  to  maintain  his 
child.(l)  Nor,  as  it  has  been  frequently  held,  shall  the  interest  of 
the  legacy  be  applied  to  that  purpose,  unless  in  cases  of  great  ne- 
cessity, arising  from  the  distressed  and  embarrassed  circumstances 
of  the  parent(/?).(2)  In  eases  so  pressing  the  infant  shall  be  main- 
tained out  of  the  interest  of  the  legacy,  whether  it  be  vested  or  con- 
tingent; and,  although  the  legacy  be  devised  over  on  the  infant's 
dying  before  he  attains  twenty-one(  9).  Indeed,  in  some  recent 
instances,  where  the  will  has  contained  an  express  direction  for 
maintenance  of  the  legatees  out  of  the  interest  of  the  legacies,  and 
there  have  been  other  children,  not  the  objects  of  the  testator's 
bounty,  such  maintenance  has  been  ordered,  on  the  ground  of  the 
father's  not  being  of  ability  to  educate  the  favoured  children  in  a 
manner  suitable  to  their  fortunes(r).     But  the  court  wdll  not  make 

(k)  Crickett  v.  Dolby,  3  Ves.  jun.  (0)  Pott  v.  Fellows,  1  Swans.  561, 

12.  Ip)    Butler   v.   Butler,   3  Atk.    GO. 

(A  Raven  v.  White,  1  Swans.  Rep.  Darley  v.  Darley,  399.     Vid.  Andrews 

553.     S.  C.  I  Wils.  204.  v,   Partington,  3   Bro.   Ch.   Rep.   GO. 

(m)  Nichols  v.  Osborn,  2  P.  Wms.  Walker  v.  Shore,  15  Ves.  jun.  122. 

420.     Vid.  Tyrrell  v.  Tyrrell,  4  Ves.  (q)    Butler  v.   Butler,   3   Atk.    GO. 

jun.  4.  Harvey  v.   Harvey,  2  P.  Wms.   21. 

(n)Tissenv.Tissen,l  P.Wms.  500.  But  see  Buckworlh  v.  Buckworth,  1 

2  P.    Wms.    421,  note   1.  Ibid.  504.  Cox's  Rep.  80. 

Green  v.  Ekins,  2  Atk.  473.      Cha-  (/•)  Hoste  v.  Pratt,  3  Ves.  jun.  733. 

worth  v.  Hooper,  1  Bro.  Ch.  Rep.  82.  Vid.  also  Mundy  v.  Earl  Howe,  4  Bro. 

Ibid.  335.    Shepherd  v.  Ingram,  Amb.l.  Ch.  Rep.  223.    Heysham  v,  Heysham, 

448.     Vid.  Butler  v.  Butler,  3  Atk.  59.  1  Coxs  Rep.  179. 


(1)  Crtiger  v.  Jli-ij-ward,  '2  Dc-saus.  Kcp.  84. 

(2)  See  Iletjward  v.  Culhbcri,  4  Dcsaus.  Rep.  4-15.    Mijers  v.  Mi/cn;  'Z  M'Cord's  Cha. 
Rep.  255. 

28 


327  THE  RATE  OF  8UCH  INTEREST.  [bOOK  III. 

an  allowance  to  a  father  for  the  maintenance  of  a  child  for  the  time 
past,  although  it  should  appear  that  he  had  not  been  of  ability  to 
maintain  him,  and  the  will  has  expressly  given  the  produce  to  trus- 
tees for  the  child's  maintenance(5).  And  the  court  has  made  a  liberal 
allowance  of  maintenance  for  an  infant,  in  regard  to  an  illegitimate 
brother  unprovided  for(/). 

On  occasions  extremely  urgent,  the  court  will  even  break  in  upon 
the  principal;  but  this  authority  is  exercised  very  sparingly,  and 
with  great  caution(?/).  If  the  legacy  be  of  small  amount,  and  the 
interest  altogether  inadequate  to  the  necessities  of  the  infant,  the 
[328]  court  will  order  a  part  of  the  principal  to  be  immediately  paid, 
and  that  as  well  for  his  education,  as  for  his  maintenance(zj).(l)  But 
if  the  legacy  be  devised  over  in  case  of  the  infant's  dying  before  he 
comes  of  age,  the  principal,  it  seems,  shall  on  no  account  be  subject 
to  such  diminution(ii').(2) 

With  respect  to  the  quantum  of  the  interest  thus  payable  on  a 
legacy,  a  distinction  formerly  prevailed  between  legacies  charged 
on  land,  and  such  as  were  charged  on  the  personal  estate.  It  has 
been  held,  that  as  land  never  produces  profit  equal  to  the  interest 
of  money,  the  Court  of  Chancery  will  follow  the  course  of  things, 
and  give  interest,  where  it  arises  from  land,  one  per  cent  lower 
than  where  it  arises  from  personal  property  (a');  but  this  distinction 
is  now  exploded:  Whether  legacies  are  charged  on  real  or  on  per- 
sonal estate,  it  is  become  the  established  practice  to  allow  only  four 
per  cent,  where  no  other  rate  of  interest  is  specified  by  the  will. 
And  although  pecuniary  legacies  not  having  the  addition  of  the 
word  "sterling,"  are  to  be  paid,  as  I  have  already  stated,  according 
to  the  currency  of  the  country  where  the  will  was  made,  yet  the 
interest  is  to  be  computed,  in  conformity  to  the  course  of  the  court, 
at  four  per  cent,  and  not  pursuant  to  the  rate  of  interest  in  such 
country(y). 

[329]  On  the  payment  of  a  legacy  an  executor  is  bound  to  take  a 
receipt  for  the  same  properly  stamped  according  to  the  value  of  the 
legacy,  and  the  relationship  of  the  legatee(r). 

A  testator  directing  legacies  to  be  paid  at  the  expiration  of  six 

(s)  Andrews  v.  Partington,  2  Cox's  {w)  4  Bac.  Abr.  442.      Leech  v. 

Rep.  223.  Leech,   1   Ch.  Ca.   249.     Brewin  v. 

{t)  Bradshawv.  Bradshaw,  1  Jac.  &  Brewin,  Prec.  Ch.  195. 

Walk.  647.    '  {x)   Hearle  v.  Greenbank,   I  Ves. 

(w)  Harvey  v.  Harvey,  2  P.  Wms.  308,  309. 

21.     Vid.  supr.  318,  319.  {y)    Pierson  v.  Garnet,  2  Bro.  Ch. 

(i.)  Barlow  v.  Grant,  1  Vern.  255.  Rep.  47.     Malcolm  v.  Martin,  3  Bro. 

Harvey  v.  Harvey,  2  P.  Wms.  21.  Ch.  Rep.  53.   4  Bac.  Abr.  440,  in  note. 

Ex  parte  Green,  1  Jac.  &  Walk.  Rep.  (2)  Vid.  Append. 
253. 


(1 )  Matter  ofjiostwick,  4  Johns.  Ch.  Rep.  102. 

(2)  Nor  will  the  interest  be  applied  lor  maintenance  and  education,  in  such  a  case. 
Jililes  V.  Winter,  5  Binn.  iT7. 


CHAP.  IV.]  THE  RATE  OF  SUCH  INTEREST.  329 

months  after  his  death,  without  deduction,  the  legatees  are  entitled 
to  the  full  amount,  and  the  legacy  duty  must  be  paid  by  the  execu- 
tors(a). 

If  a  testator  die  in  India,  and  his  personal  estate  be  wholly  in  In- 
dia, and  his  executor  be  resident  there,  and  the  will  be  proved  there, 
and  the  executor  remit  to  a  legatee  in  England,  or  to  some  other 
person  in  England  for  the  specific  use  of  the  legatee,  the  amount  of 
his  legacy,  the  legacy  duty  is  not  payable  upon  such  remittance, 
inasmuch  as  the  whole  estate  is  administered  in  India,  and  the  re- 
mittance is  in  respect  of  a  demand  which  is  to  be  considered  as  es- 
tablished there.  But  if  a  part  of  the  assets  of  the  testator  is  found 
in  England,  in  the  hands  of  the  agent  of  such  executor,  without  any 
specific  appropriation,  and  a  legatee  in  England  institute  a  suit  here 
for  the  payment  of  his  legacy  out  of  such  unappropriated  assets,  then 
such  assets  are  to  be  considered  as  administered  in  England,  and  the 
legacy  duty  is  payable  in  respect  of  them (6). 

An  executor  paid  to  a  legatee  for  four  years  an  annuity  charged 
on  a  real  estate,  without  deducting  the  legacy  duty,  which  was  not 
in  fact  paid  by  him  according  to  the  provisions  of  45  Geo.  3.  c.  28, 
until  after  the  legatee  had  assigned  all  his  interest  in  such  annuity; 
it  was  held,  that  the  legatee  was  liable  to  repay  him  the  duty,  it  not 
being  a  voluntary  payment;  and  the  executor  was  only  made  liable 
by  the  act  for  the  benefit  of  government,  and  not  on  his  own  account; 
he  was  therefore  no  more  than  surety  for  the  legatee,  and  the  case 
fell  within  the  principles  applicable  to  sureties(c). 


Sect.  IV. 
Of  the  ademption  of  a  legacy. 

I  PROCEED  now  to  inquire  into  the  nature  of  an  ademption  of  a 
legacy. 

An  ademption  of  a  legacy  is  the  taking  away,  or  revocation  of 
it  by  the  testator.  It  may  be  either  express  or  implied.  The  tes- 
tator may  not  only  in  terms  revoke  a  legacy  he  had  before  given, 
but  such  intention  may  be  also  indicated  by  particular  acts(c/):  As 
where  a  father  makes  a  provision  for  a  child  by  his  will,  and  after- 
wards gives  to  such  child,  if  a  daughter,  a  portion  in  marriage:  or 
if  a  son,  a  sum  of  money,  to  establish  him  in  life;  provided  such 
portion,  or  sum  of  money,  be  equal  to  or  greater  than  the  legacy, 
this  is  an  implied  ademption  of  it,  for  the  law  will  not  intend  that 

(a)  Barksdale  v.  Gilliat,  1  Swans.  Cockerell,  1  Price,  IG5;     and  Attor- 

562,  and  see  Waring  v.  Ward,  5  Ves.  ney-Gcncrul  and  Kcatson,  7  Price,  500. 
C70.  (r)  Hales  V.  Freeman,   1   liin^.  & 

(i)  Logan  V.  Fairlie,  2  Sim.  &  Stu.  Brod.  Rep.  .391 . 
284;      and    sec   Attorney-General    v.  (rf)  2  I'onbl.  353. 


329  THE  ADEMPTION  OF  A  LEGACY.  [p.OOK  III. 

the  father  designed  two  portions  for  the  same  chi]d(6),  ]?ut  this 
[330]  implication  will  not  arise  if  the  provision  in  the  will  is  created 
by  bequest  of  the  residue(c);  nor  if  the  provision  in  the  father's  life- 
time be  subject  to  a  contingency(G?);  nor  unless  it  be  ejusdem  ge- 
ne7'is  \\\{\\  the  legacy(e);  nor  if  it  be  expressly  in  satisfaction  of 
a  claim  aliunde;  nor  if  the  portion  be  given  absolutely,  and  the 
legacy  under  limitations(y);  nor  if  the  testator  were  a  stranger(,:»); 
nor  if  the  testator  be  the  uncle  of  the  legatee(A);  nor  if  the  legatee 
be  an  illegitimate  child,  unless  the  testator  placed  himself  clearly 
in  loco  par-en 'l.i(i);  and  the  doctrine  of  ademption  of  legacies  is 
fully  considered  as  confined  to  the  cases  of  parents,  and  persons 
placing  themselves  i)i  loco  jiarentis;  and  such  imj)lication  is  always 
liable  to  be  repelled  by  evidcnce(A').  But  if  the  testator,  by  a  codi- 
cil subsequent  to  the  jjortioning  or  advancement  of  the  child,  ratify 
and  confirm  his  will,  this,  altbough  a  new  publication,  shall  not  avail 
to  overturn  the  presum])tion,  that  he  meant  to  adeem  the  legacy;  for 
such  words  are  merely  formal(/).  A  gift  by  a  parent  in  his  lifetime 
to  legatees,  after  a  will  giving  them  legacies,  has  been  held  to  be  part 
satisfaction  of  the  legacies,  upon  evidence  of  the  intention  of  the  tes- 
tator to  that  effect. 

In  respect  to  the  ademption  of  a  legacy,  all  the  cases  on  the  sub- 
ject concur  in  the  principle,  that  the  intention  of  the  testator  must 
govern;  but,  in  the  application  of  that  principle,  or  what  shall  amount 
to  evidence  of  such  an  intention,  they  are,  in  many  instances,  inca- 
pable of  being  reconciled. 

Thus,  in  some  cases  it  has  been  held,  tliat  where  a  sum  of  money 
is  bequeathed  out  of  a  particular  fund,  such  legacy  is  in  its  nature 
[331]  general,  a  legation  in  numeratis,  and  if  the  testator  in  his 
lifetime  receive  it,  it  must  be  made  good  to  the  legatee  out  of  the 
general  assets;  for  from  that  act  of  the  testator  no  presumption  can 
be  raised  of  his  intention  to  revoke  his  bounty(m).(l).    In  other 

(i)  2  Fonbl.  354,  note  A.   Hartop  v.  (  s;)  Sliudall  v.  Jekyll,  2  Atk.  516. 

Whitmore,   1  P.  Wms.  680.     2  Ch.  Powell  v.  Cleaver,  2  Bro.  Ch.  Rep. 

Rep.  85.     Jenkins  v.  Powell,  2  Vern.  499. 

115.     Duffield  V.  Smith,  2  Vern,  257.         {h)  Brown  v.  Peck,  1  Eden's  Rep. 

Ward  V.  Lant,  Prec.  Ch,  183,     Farn-  140. 

ham  V,  Phillips,  2  Atk.  216,     Watson  {>)  Wetherby  v.  Dixon,  Coop.  Rep. 

V.  Earl  Lincoln,  Ambl.  325.     Ellison  279,    S,  C,  19  Ves.  407,   and  see  Ex 

V.  Cookson,  2  Bro.  Ch.  Rep,  307,     S,  parte  Dubost,  18  Ves,  140, 
C,  3  Bro,  Ch,  Rep,  61,     Cookson  v.         (/.•)  Shudall  v,  .Tekyll,  2  Atk.  516. 

Ellison,  2  Cox's  Rep.  220.     Hartop  Debeze  v,  Mann,  2  Bro,  Ch,  Rep,  165. 

V.  Hartop,  17  Ves.  184.  519,     S,  C.  1  Cox's  Rep,  346, 

(c)  Farnhamv,  Phillips,  2  Atk.  216.  (/)    Irod  v.   Hurst,  2  Freem.   224. 

\d)  Spinks  v,  Robins,  2  Atk,  491.  Thelluson  v.  Woodford,  4  Madd.  Rep. 

(e)  Grace  v.  Earl  of  Salisbury,   1  421, 
Bro,  Ch.  Rep,  425,  {m)  4  Bac,  Abr,  355.     Ashbnrner  v. 

(/)Bauahv,  Reed,3Bro,  Ch,  Rep.  Macguire,  2  Bro.  Ch,  Rep,  108.  Finch. 

192.     Bell  V.  Coleman,  5  Madd.  Rep.  152,     Pawlet's  case,  Raym,  335.     Sa- 

22.  vile  V.  Blacket,  1  P.  Wms.  777. 

(1)  Walton  V.  ] Fulton,  7  Jolins.  Clia.  Rep.  2C'i. 


CHAP.  IV.]       THE  ADEMPTION  OF  A  LEGACY.  331 

cases  it  has  been  decided,  that  such  a  legacy  under  the  same  circum- 
stances is  adeemed(w).  Some  authorities  distinguish  between  the 
bequest  of  a  sum  of  money  to  be  satisfied  out  of  a  particular  fund, 
and,  consequently,  a  general  legacy,  and  a  bequest  of  a  sjDCcific  debt; 
that  the  former  is  not  adeemed,  while  the  latter  is  adeemed  by  pay- 
ment to  the  testator(o).  But  these  last  mentioned  cases  differ  in 
their  construction  of  what  shall  be  the  bequest  of  a  general  legacy, 
as  opposed  to  that  of  a  specific  debt.  Some,  as  we  have  already 
seenlp),  adopt  a  distinction  between  the  bequest  of  a  certain  sum 
of  money  due  from  a  particular  person,  as  "  five  hundred  pounds  due 
on  a  bond  from  A.;"  and  a  bequest  of  such  debt  generally,  as,  "of 
the  bond  from  A.;"  that,  in  the  former  instance,  the  legacy  is  pecu- 
niary, in  the  latter  is  specilic(5').  But,  according  to  other  cases,  this 
distinction  is  too  slender  to  be  relied  on(/').  A  difference  has  also, 
in  some  instances,  been  taken  between  a  compulsory,  and  a  volun- 
tary payment  to  the  testator  of  such  debt;  in  [332]  other  words, 
where  the  testator  himself  calls  in  a  debt  which  he  has  bequeathed, 
and  where  the  debtor  unprovoked,  and  without  application,  thinks 
fit  to  pay  it;  that,  in  the  former  instance,  it  is  the  act  of  the  testator, 
and,  consequently,  an  ademption;  in  the  latter  he  is  merely  passive, 
and  therefore  cannot  be  presumed  to  have  changed  his  mind(5).  But 
the  doctrine  of  some  cases  is,  that  this  distinction  has  no  weight(/); 
and  of  others,  that  it  has  no  existence(?/),  and  that  the  case  is  not 
varied  by  the  mode  of  payment.  In  another  class  of  cases  this  dis- 
tinction between  a  compulsory  and  a  voluntary  payment  has  been 
recognized  as  very  important,  but  not  as  an  absolute  rule  of  deci- 
sion; on  the  principle,  that  the  testator's  calling  lor  payment  is  not 
of  itself  sufficient  evidence  of  an  intention  to  adeem,  but  an  equivocal 
act  requiring  explanation(y). 

It  is,  however,  clear  that  if  the  legacy  be  of  a  specific  chattel,  and 
the  testator  alter  the  form,  so  as  to  alter  the  specification  of  the  sub- 
ject; as  if,  after  having  given  a  gold  chain  by  his  will,  he  convert 
it  into  a  cup:  or,  after  he  has  bequeathed  wool,  he  make  it  into 
cloth,  or  a  piece  of  cloth  into  a  garment;  the  most  obvious  conclu- 
sion that  can  be  formed  from  such  an  act  is,  that  he  has  changed 
the  intention  he  had  expressed  in  his  will;  therefore,  in  such  in- 

(n)  Badrickv.  Stephens,  3  Bro.Ch.  1G5.   330,   note    1,   ibid.    Bronson  v. 

Rep.  431.      See   also  2  Fonbl.   3G7.  Winter,  Arnbl.  57. 

note  (f  ).  (0  Karl  of  Thomond  v.  Earl  of  Suf- 

(o)  Hambling  v.  Lister,  Ambl.  401.  folk,'  1  P.  Wms.  4G1.     Ashton  v.  Ash- 

(/;)  Vid.  supr.  303.  ton,  3  P.  Wms.  386.   S.  C.  2  P.  Wms. 

(y)  Rider  v.  Wager,  2  P.  Wms.  330,  409.     Ford  v.  Pluming,  2  Str,  823. 

and  note  1,  ibid.     Attorney-General  v.  (u)    Attorney-.General    v.    Parkin, 

Parkin,  Ambl.  5GG.     Carteret  v.  JiOrd  Ambl.  5GG.     Ashburner  v.  Macguire, 

Carteret,  cited  2  Bro.  Ch.  Rep.  114,  2  Bro.  Ch.  Rep.  lO'J.   4  Bac.  Abr.355, 

and  see  Le  Grice  v.  Finch,  3  Meri.  note  (B).     Stanley  v.  Potter,  2  Cox's 

Rep.  50.  Rep.  180. 

(r)  Ashburner  v.  Maguire,  2  Bro.  (r)  Drinkwatcr  v.  Falconer,  2  Ves. 

Ch.  Rep.  111.     1  Kq.  Ca.  Abr.  302.  C23.     JIamblingv.  Lister,  Ambl.  401. 

(s)  Crockat  v.  Crockat,  2  P.  Wms.  Coleman  v.  Coleman,  2  Ves.  jun.  G39. 


33!2  THE  ADEMPTION  OF  A  LEGACY.        [bOOK  III. 

stances,  the  legacy  shall  be  acleemed(iw).(l)  So,  if  he  bequeath  his 
stock  in  a  particular  fund,  and  sell  it  out  subsequently  to  the  mak- 
ing of  the  will,  this,  on  the  same  principle,  amounts  to  an  ademp- 
tion(.r).  And  where  a  testator  bequeathed  two  policies  on  a  life 
upon  certain  trusts,  and  received  the  amount  of  the  policies  in  his 
lifetime,  it  was  held  that  the  legacies  were  adeemcd(a^).  But  if  A. 
bequeath  so  much  stock  to  B.,  and,  after  making  his  will,  sell  it  out 
and  then  buy  in  again  the  same  quantity  of  stock,  this  is  no  ademp- 
tion: for  if  the  selling  of  the  stock  is  evidence  of  his  having  altered 
his  intention,  his  buying  it  in  again  is  evidence,  equally  strong,  that 
he  meant  the  legatee  should  have  it(y).(2)  If  the  testator,  after 
such  bequest  of  stock,  sell  out  part  and  die,  such  sale  shall  be  an 
ademption  pro  tanto[z).  Thus,  wliere  A.  bequeathed  a  moiety  of 
two-thirds  of  the  residue  of  the  South  Sea  Stock,  India,  Bank,  and 
Orphan  Stock,  Leases,  East  India  and  South  Sea  Bonds,  and  other 
his  personal  estate  to  B.:  B.  before  he  received  this  legacy  made  his 
will,  and  devised  this  moiety  to  trustees  to  sell  and  pay  out  of  the 
same  the  sum  of  two  hundred  pounds  to  C.  and  the  residue  of  the 
money  to  D.:  afterwards  B.  and  the  legatee  of  the  other  moiety 
coming  to  an  account  with  the  executor  of  A.,  their  respective 
shares  were  set  out  and  '^eceived,  and  the  stock  and  bonds  were 
allotted  to  B.,  who  sold  part  of  them  in  his  lifetime,  but  kept  no 
account  of  the  produce:  this  was  decreed  to  be  an  ademption  of 
the  legacy  to  D.  pro  tanto;  but  it  was  held  that  B.'s  receipt  of  his 
share  was  clearly  no  ademption;  inasmuch  as  the  [334]  object  both 
of  B.  and  the  other  was  merely  to  ascertain  their  moieties,  and  to 
prevent  survivorship(«). 

So  it  has  been  decided,  that  a  bequest  of  a  debt  shall  not  be 
adeemed  by  the  testator's  having  received  dividends  upon  it  under 
the  bankruptcy  of  the  debtor(6).  But  that  such  legatee  is  entitled 
to  the  dividends  not  received  by  the  testator,  and  whatsoever  may 
in  future  be  payable  out  of  the  bankrupt's  estate,  in  respect  of  that 
debt. 

{w)  3  Bro.  Ch.  Rep.  110.  (z)  Ca.  Temp.  Talb.  226. 

\x)  3  Bro.  Ch.  Rep.  108.     Barker  (c)  Birch  v.  Baker,  Mos.  373. 

V.  Rayner,  5  Madd.  Rep.  208.  (i)  Ashburner  v.  Macguire,  2  Bro. 

(?/)    Partridge  v.    Partridge,    Ca.  Ch.  Rep.  108. 
Temp.  Talb.  226. 


(1)  Walton  V.  Walton,  7  Johns.  Cha.  Rep.  262. 

(2)  So  where  a  bequest  was  made  of  "  all  the  money  due  on  a  bond  agahist  P.  P.  and 
J.  P.,"  and  after  such  bequest  tlie  testator,  at  the  request  of  one  of  the  obligees,  accepted 
another  bond  in  lieu  of  the  first,  it  was  held  not  to  be  an  ademption  of  Uie  legacy,  which 
was  specific.    Stoxit  v.  Hart,  2  Halst.  Rep.  414. 


CHAP.  IV.]  OF  CUMULATIVE  LEGACIES.  334 

Sect.  V. 
Of  cumulative  legacies. 

Legacies  may  be  also  cumulative:  they  are  contradistinguished 
from  such  as  are  merely  repeated.  As  where  a  testator  has  twice 
bequeathed  a  legacy  to  the  same  person,  it  becomes  a  question  whe- 
ther the  legatee  be  entitled  to  both,  or  to  one  only.  And  on  this 
point  likewise  the  intention  of  the  testator  is  the  rule  of  construc- 
tion(a).(l) 

On  this  head  there  are  three  classes  of  cases;  first,  those  cases  in 
which  there  is  no  evidence  of  such  intention,  either  internal  or  ex- 
trinsic, one  way  or  the  other;  those  cases  where  there  is  internal 
evidence;  and  also  those  in  which  there  is  extrinsic  evidence. 

[335]  In  regard  to  the  first,  where  there  is  neither  internal  or  ex- 
.  trinsic  evidence,  it  is  necessary  to  recur  to  the  rule  of  law(6).   There 
are  four  instances  of  this  class: 

Where  the  same  specific  thing  is  bequeathed  to  A,  twice  in  the 
same  will,  or  in  the  will  and  again  in  the  codicil:  in  that  case  he  can 
claim  the  benefit  only  of  one  legacy,  because  it  could  be  given  no 
more  than  once(c). 

Where  the  like  quantity  is  bequeathed  to  him  twice  by  one  and 
the  same  instrument:  there  also  he  shall  be  entitled  to  one  legacy 
only(c?).  So  where  an  unconditional  legacy  was  given  by  a  third 
testamentary  paper,  it  was  held  to  be  a  substitution  for  a  conditional 
legacy  to  the  same  amount,  given  by  the  first  testamentary  paper(e). 

Where  the  .bequest  to  him  is  of  unequal  quantities  in  the  same 
instrument;  the  one  is  not  merged  in  the  other,  but  he  has  a  right 
to  them  both(y). 

And,  lastly,  where  the  bequest  to  him  is  of  equal,  or  unequal, 
quantities  by  different  instruments:  in  that  case  also  there  shall  be 
an  accumulation(^). 

There  are  likewise  cases  in  which  there  is  internal  evidence  of  the 

(a)   4  Bac.    Abr.  361.     Ridges  v.  Madd.  Rep.  263;   and  see  Gillespie  v. 

Morrison,  I  Bro.  Ch.Rcp.  389.    Coote  Alexander,  2  Sim.  &  Stu.  145. 

V.  Boyd,  2  Bro.  Ch.  Rep.  527.  (/)  1  Bro.  Ch.  Rep.  392,  in  note. 

(6)  Hooley  v.  Hatton,  1   Bro.  Ch.  Vid.  Coote  v.  Boyd,  2  Bro.  Ch.  Rep. 

Rep.  391,  in  note.  521. 

(c)  1  Bro.  Ch.  Rep.  392,  in  note,  and  {g)  1  Bro.  Ch.  Rep.  391,  and  392, 

ibid.  393.  in   iiotc.     Masters  v.   Masters,   1    P. 

{(l)  1  Bro.  Ch.  Rep.  392,  in  note.  Wms.  423.     1  Ch.  Ca.  361.     Foy  v. 

Swinb.  p.  7,  s.  21.     1  Bro.  Ch.  Rep.  Foy,  1   Cox's   Rep.    163.     Baillio  v. 

30,  in  note.     3  Bac.  Abr.  361.     Mas-  Butterfield,  ibid.  392.   Benyon  v.  Ben- 

ters  V.  Masters,  1  P.  Wms.  424.  yon,  17  Ves.  34. 

(e)  Attorney-General  v.  Ilarley,  4 

(1)  Sec  the  doctrine  fully  stated,  Dc  fVitt  v.  Yutea,  10  Johns.  Hep.  156. 


335  OF  CUMULATIVE  LEGACIES.  [bOOK  III. 

testator's  intention;  as  where  a  latter  codicil  appears  to  be  merely  a 
[336]  copy  of  the  former  with  the  addition  of  a  single  legacy;  or 
where  both  legacies  are  given  for  the  same  cause;  they  shall  not  be 
cumulative,  whether  given  by  the  same  or  different  instruments,  as 
they  shall  be  where  one  is  given  generally,  and  the  other  for  an  ex- 
press purpose;  or  where  one  reason  is  assigned  for  the  former,  and 
another  for  the  latter;  or  where  the  legacies  are  not  ejusdcrn  generis, 
as  where  an  annuity  and  a  sum  of  money  is  givcn(A),  or  two  annui- 
ties of  the  same  amount,  by  different  instruments,  the  one  payable 
quarterly,  the  other  half  yearly (/);  or  two  annuities  of  different 
amounts,  the  one  given  by  the  will,  payable  out  of  real  estate,  the 
other  by  the  codicil,  payable  out  of  personal  estate(A').  In  like  man- 
ner it  may  be  collected  from  the  context,  whether  the  testator  meant 
a  duplication,  or  a  mere  repetition  of  the  first  bequest.  And  his  in- 
tention has  been  inferred  from  very  slight  circumstances(/). 

Extrinsic  evidence  is  also  admissible  on  this  subject.  Whether 
the  testator  by  giving  two  legacies  did,  or  did  not,  intend  the  legatee 
to  take  both,  is  a  question  of  presumption,  which  will  let  in  every 
species  of  proof(wz).  Hence,  if  the  testator,  after  the  making  of  the 
will,  and  before  the  date  of  the  codicil,  had  an  increase  of  fortune, 
that  circumstance  has  been  held  to  prove  that  he  intended  an  addi- 
tional bounty(?i). 


Sect.  VI. 
Of  a  legacy  being  in  satisfaction  of  a  debt. 

Under  certain  circumstances,  a  legacy  is  regarded  in  the  light  of 
[337]  a  satisfaction  of  a  debt.  On  this  point  also,  the  intention  of 
the  testator  is  the  criterion(«). 

It  is  a  general  rule,  that  a  legacy  given  by  a  debtor  to  his  creditor, 
which  is  equal  to  or  greater  than  the  debt,  shall  be  considered  as  a 
satisfaction  of  it(6).(l) 

(7()  Masters  V.  Masters,  1  P.  Wms.         (m)  Cootev.  Boyd,  2  Bro.  Ch.Rep. 

423.  527,  528.     4  Bac.  Abr.  361,  in  note. 

(t)  Currie  v.  Pye,  17  Ves,  jun.  462.  (n)  Masters  v.  Masters,  1  P.  Wms. 

{k)  Wrio-ht   V.    Lord   Cadogan,    2  424. 
Eden's  Rep.  239.  («)  4  Bac.  Abr.  362.     Cuthbert  v. 

(/)  4  Bac.  Abr.  361.     Duke  of  St.  Peacock,  1  Salk.  155,  pi.  5.  Cranraer's 

Albans  v.  Beauclerk,  2  Atk.  640.  Rid-  case,  2  Salk.  508.     2  Fonbl.  332. 
ges  V.  Morrison,  1  Bro.  Ch.  Rep.  389.  {b)  1  P.  Wms.  409,  note  1.     Talbot 

Coote  V.  Boyd,  2  Bro.  Ch.  Rep.  521.  v.  Duke  of  Shrewsbury,  Prec.  Ch.  394. 

1  P.  Wms.  424,  in  note  2.     Benyon  v.  Jeffe  v.  Wooff,  2  P.  Wms.  132.  Fow- 

Benyon,  17  Ves.  jun.  34.  ler  v.  Fowler,  3  P.  Wms.  353.  Reech 


(1)  WiUiams\.  Crary^  8  Cow.  Rep.  246.  But  a  devise  of  lands  to  a  creditor,  though 
it'be  greater  in  value  tlian  the  amount  of  the  debt,  does  not  extinguish  a  debt  or  claim 
which  he  has  against  the  testator.     Partridge's  Adm.  v.  Partridge,  2  Harr.  &c  Johns.  63. 


CHAP.  IV.]  OF  A  LEGACY  TO  A  CREDITOR.  337 

But  this  is  merely  a  rule  of  construction,  and  the  courts  in  a  variety 
of  instances  have  denied  the  application  of  it,  where  they  have  been 
able  to  collect  from  the  will  circumstances  to  repel  the  presump- 
tion(c):  As  where  it  contains  an  express  direction  for  the  payment 
of  debts(t^),(l)  or  if  the  legacy  be  less  than  the  debt,  it  has  been 
held  not  to  go  in  discharge,  nor  even  in  diminution  of  it(e).(2) 

Nor  shall  the  legacy  be  a  satisfaction  if  it  be  conditional,  or  given 
on  a  contingency,  for  it  shall  not  be  supposed,  that  the  testator  in- 
tendedan  uncertain  recompence  insatisfactionof  a  certain  demand(y). 
Nor  is  a  legacy  considered  as  a  satisfaction,  where  it  is  not  equally 
beneficial  with  the  debt  in  one  respect,  though  it  may  be  more  so  in 
another;  as,  where  the  legacy  is  to  a  greater  amount  [338]  but  the 
payment  of  it  is  postponed  for  however  short  a  period(,;0-):  nor  shall 
a  legacy  be  held  to  be  in  satisfaction  of  a  covenant,  unless  it  be  equally 
beneficial  in  amount,  certainty,  and  time  of  enjoyment,  with  the  thing 
contracted  for(/i). 

Nor  if  the  debt  were  on  an  open  or  running  account,  so  that  the 
testator  could  not  tell  whether  the  balance  was  in  favour  of  the  lega- 
tee or  not(/).(3)  Nor  if  the  debt  were  contracted  after  the  making 
of  the  will  in  which  the  legacy  is  given,  shall  he  be  supposed  to 
have  had  it  in  contemplation  to  satisfy  a  debt  which  was  not  then  in 
existence(^). 

Parol  declarations  by  the  testator  are  admissible  in  evidpnce,  to 
repel  the  presumption  of  the  satisfaction  of  a  debt,  by  the  bequest  of 
a  legacy  of  greater  amount,  even  where  such  declarations  were  not 
contemporaneous  with,  but  subsequent  to  the  making  of  tlie  will(4); 

V.  Kennegal,  1  Ves.  126.  Vid.  Cromp-  555.     Barrett  v.  Beckford,  1  Ves.  519. 

ton  V,  Sale,  2  P.  Wms.  555.  (g)  Atkinson  v.  Webb,  Prec.  Ch. 

(c)  1  P  Wms.  409,  note  1.  236.     Hawes  v.  Warner,  2  Vern.  478. 

(d)  Chancey'scase,  1  P.  Wms.  410.  NichoUs  v.  Judson,  2  Atk.  300.  Clark 
Richardson  v.  Greese,  3  Atk.  66.  68.  v.  Sewell,  3  Atk.  96.  Hayes  v.  Mico, 
Sed  vid.  Gaynorv.  Wood,  at  the  Rolls,  1  Bro.  Ch.  Rep.  129.  Jeacock  v. 
cited  1  P.  Wms.  409,  note  1,  and  4  Falkener,  ib.  295.  2  Fonbl.  331,  note 
Bac.  Abr.  428.  M.   Matthews  v.  Mathews,  2  Ves.  635. 

(t)  Cranmer's   case,   2   Salk.  508.  1  P.  Wms.  409,  note  1. 

Hawes  v.  Warner,  2  Vern,  478!  East-  (h)  Blandy  v.  Wedmore,  1  P.  Wms. 

wood  V.  Vinke,  2  P.  Wms.  616.     Mi-  324.  409,  note  1.  Eastwood  v.Vinke,2 

nuel  V.  .Sazarine,  Mos.  295.  P.  Wms.  614.     2  Fonbl.  332,  note  O. 

(/)  2  Fonbl.  331.     Talbot  v.  Duke  (/)  Rawlins  v.Powel,  1  P.  Wms.  299. 

of  Shrewsbury,  Prec.  Ch.  394.    Cran-  (/«•)  2  Fonbl.  331,  332.     2  Salk.  598. 

mer'scase,  2  Salk.  508.     Nicholls  v.  Chancey's  case,  1  P.  Wms.  409.  Tlio- 

Judson,  2  Atk.  300.  Spinks  v.  Robins,  mas  v.  Bennet,  2  P.  Wms.  343.  Fow- 

ib.  491.    Crompton  v.  Sale,  2  P.  Wms.  ler  v.  Fowler,  3  P.  Wms.  353. 

(1)  Such  express  direction  is  of  no  moment  in  Pennsylvania.    3  Serg.  &.  Rawle,  61. 

(2)  Strong  \.  Williams,  12  Mass.  Rep.  .391.  Jiyrne  v.  JSyime,  3  Serg.  &  Rawle,  54. 
Owings^s  Ex.  v.  Oivings,  1  Harr.  k  Gill's  Rep.  484. 

(3)  WilUamn  v.  Cvary,  5  Cow.  Rep.  368.  Rut  it  was  subsequently  ruled  in  this  case, 
that  where  the  legacy  appears,  either  from  the  face  of  the  will?  or  by  evidence  aliunde,  io 
be  intended  by  the  testator  as  a  satisfaction,  it  will  so  operate,  Ihougli  the  sum  be(iuuathed 
stand  in  an  unliquidated  account.     Williams  y.  Crary,  8  Cow.  Rep.  246. 

(4)  Williams  v.  Crary,  8  Cow.  Rep.  246. 

29 


338  OP  A  LEGACY  TO  A  CREDITOR.  [bOOK  III. 

and  altlioLigli  the  expressions  in  the  will  may  afford  an  inference  in 
favour  of  the  prcsumption(/). 

But  in  all  cases  the  legacy  shall  be  construed  as  a  satisfaction,  in 
case  there  be  a  deficiency  of  assets. 

Where  a  legacy  is  decreed  to  be  in  satisfliction  of  a  debt,  the  court 
always  gives  interest  from  the  testator's  death(wi). 

On  the  other  hand,  if  a  legacy  be  left  to  the  testator's  debtor,  the 
debt  shall  be  deducted  from  the  legacy,  for  the  legatee's  demand  is 
in  respect  of  the  testator's  assets,  without  which  the  executor  is  not 
liable,  and  therefore  the  legatee  in  such  case  is  considered  by  a  court 
of  equity  to  have  so  much  of  the  assets  already  in  his  hands  as  the 
debt  amounts  to,  and  consequently  to  be  satisfied  pro  tanto;  for  there 
can  be  no  pretence  to  say,  that  because  the  testator  gives  a  legacy  to 
his  debtor,  that  this  is  an  argument  to  evidence  that  the  testator 
meant  to  remit  the  debt.  So  under  certain  circumstances,  money  or 
goods  lent  or  delivered  by  the  executor  to  such  legatee,  was  held  by 
the  court  to  be  in  part  payment  of  the  legacy  (w). 

If  the  testator  bequeath  to  his  debtor  the  debt,  this  being  no  more 
than  a  release  by  will,  operates,  as  we  have  seen(o),  only  as  a  legacy; 
and  is  assets,  subject  to  the  payment  of  the  testator's  debts(/»). 

Where  a  legacy  was  left  to  the  wife  of  A.  who  was  largely  in- 
debted to  the  testatrix,  and  A.  became  a  bankrupt,  and  his  wife  after- 
wards died  without  having  asserted  any  claim  in  respect  of  the  lega- 
cy, and  the  as^igIlcc^  claimed  it,  it  w.is  held,  that  the  executors  of  the 

testatrix  were  entitled  to  retain  the  legacy  in  part  discharge  of  the 
debt  due  to  the  testatrix  (^r). 


[339]  Sect.  VII. 

Of  the  abatement  of  legacies, — of  the  refunding  of  legacies, — of 

the  residuum. 

In  case  the  estate  be  sufficient  to  answer  the  debts  and  specific 
legacies,  but  not  the  general  legacies,  they  are  subject  to  abatement, 
and  that  in  equal  proportions;  but  in  such  case  nothing  shall  be 
abated  from  specific  legacies(a). 

Nor  shall  a  sum  of  money  bequeathed  by  the  testator,  in  satisfac- 
tion or  recompence  of  an  injury  done  by  him,  abate  any  more  than  a 
specific  legacy(6).  But  a  legacy,  although  devised  to  be  paid  in  the 
first  place,  shall  abate,  if  the  fund  be  insufficient  for  the  legacies(c), 

(V)  Wallace  v.  Pomfret,  1 1  Ves.  jun.  Rep.  32. 

542.     Sed  vid.  3  P.  Wms.  351.  («)  2  Fonbl.  374.     2  Bl.  Com.  513. 

(w)  Clark  V.  Sewell,  3  Atk.  99.  Clifton  v.  Burt,  1  P.  Wras.  679. 

(»)  Jeffs  V.  Wood,  2  P.  Wms.  128.  (6)  2  Fonbl.  377. 

((-)  Supr.  308.  (c)  2  Fonbl.  378.     Brown  v.  Allen, 

(jo)Riderv.  Wager,2P.Wms.  332.  1  Yern.Sl.  Beestonv.  Booth,4  Madd. 

{q)  Ranking  v.  Barnard,   5  Madd.  Rep.  IGl. 


CHAP.  IV.]       THE  ABATEMENT  OF  LEGACIES.  339 

unless, perhaps,  it  be  a  provision  for  a  wife(^).(l)  So  a  devise  of  a 
personal  annuity  is  not,  as  we  have  seen(e),  a  specific  legacy,  but  a 
legacy  of  quantity,  and  liable  to  abate  accordingly(/).(2) 

If  A.  devise  specific  and  pecuniary  legacies,  and  direct  by  the  will 
that  such  pecuniary  legacies  shall  come  out  of  all  his  personal  es- 
tate, if  there  be  no  other  personal  estate  than  the  specific  legacies, 
[340]  they  must  be  intended  to  be  subject  to  those  which  are  pecu- 
niary, otherwise  the  bequest  to  the  pecuniary  legatees  would  be  al- 
together nugatory(^).(3)  So  a  legacy  in  favour  of  a  charity,  al- 
though preferred  by  the  civil  law,  shall  by  our  law  abate  equally 
with  other  general  legacies(A).  So  a  legacy  to  servants  shall  abate 
in  the  same  manner(^). 

But  where  a  legacy  of  200/.  was  bequeathed  for  building  a  monu- 
ment for  the  testatrix's  mother,  from  whom  the  testatrix  derived  the 
greatest  part  of  her  estate,  it  was  decreed,  that  being  a  debt  of  piety, 
it  should  not  abate  with  the  other  legacies(A;).  So  where  3/.  were 
given  to  thepoor  of  the  three  several  parishes,  it  was  considered  by  the 
court  as  part  of  the  funeral  and  as  doles  of  the  funeral,  and  therefore 
held  that  no  abatement  ought  to  be  made  out  of  them(/).  And  where 
the  testator,  after  giving  various  legacies,  expressed  at  the  end  of  his 
will  his  apprehension  that  there  would  be  a  considerable  surplus  of 
his  personal  estate  beyond  what  he  had  before  given  away  in  lega- 
cies, for  which  reason  he  gave  several  further  legacies;  and  after- 
wards, by  a  codicil,  he  gave  several  other  legacies.  It  was  decreed, 
that  the  subsequent  legacies  given  by  the  will  having  been  given  in 
a  presumption  that  tli'ere  would  be  a  surplus,  and  there  happening  to 
be  no  surplus,  the  former  legacies  should  have  a  preference,  and  the 
legacies  given  at  the  end  of  the  will  should  be  lost.  That  the  same 
apprehension  of  a  surplus  must  be  intended  to  have  continued  in  the 
testator  at  the  time  of  making  his  codicil,  and,  therefore,  unless  tlie 
inference  can  be  repelled,  the  legacies  by  the  codicil  must  be  lost 
also(m). 

{d)  Lewin  v.  Lewin,  2  Ves.  417.  v.  Earl  of  Suffolk,  462.     Attorney-Ge- 

(e)  Vid.  supr.  303.  neral  v.  Hudson,  675.     Attorney-Ge- 

(/)  Hume  V.  Edwards,  3  Atk.  693.  neral  v.  Robins,  2  P.  Wms.  25.  296. 

Lewin  v.  Lewin,  2  Ves.  417.  Sed  vid.  (/)  Attorney-General   v.   Robins,  2 

Peacock  v.  Monk,  1  Ves.  133.  P.  Wms.  25. 

(g)  Sayer  v.  Sayer,  Prec.  Ch.  393.         (k)  Masters  v.  Masters,  1  P.  V^ms. 

2  Fonbl.  377,  378.  423. 

(A)  Jenuor  V.Harper,  Prec.  Ch.  360.         (/)  Attorney-General  v.  Robins,  2 

Tate  V.  Austen,  1  P.  Wms.  265.  Mas-  P.  Wms.  25. 

ters  V.  Masters,  422.  Earl  ofThomond  (m)  Ibid.  23. 


(1)  Sluart  V.  Carson's  Ex.  I  Dcsaus.  Rep.  500.  Sec,  liowcver,  Jatt,  Ex.  v.  Bernard, 
3  Call's  Rep.  11. 

(2)  A  bequest  of  "  twenty  negroes,"  not  designated  by  name,  is  a  specific  legacy  of  the 
second  description,  and  liable  to  abate  wilb  pecuniary  legacies.  Warren  v.  fVigfall,  3 
Desaus.  Rep.  47. 

(3)  Real  estate  devised  is  not  lial)le  to  con1ril)iile  to  Ibc  payment  of  Icgacit^s,  on  a  defi- 
ciency of  personal  assets,  unless  specially  charged.  Jlatjcs  v.  Seuvcr,  7  Grccnl.  Rep.  237. 


340  THE  ABATEMENT  OF  LEGACIES.  [bOOK  III. 

Ill  case  ol'a  deficiency  of  general  assets,  that  is  to  say,  of  assets  to 
pay  debts,  specific  legacies,  althougli  not  liable  to  abate  with  the  ge- 
neral legacies,  must  abate  in  proportion  among  themselves(?i). 

Where  the  vendor  of  an  estate  would  have  absorbed  the  personal 
assets  in  payment  of  his  purchase-money,  which  was  directed  by  the 
will  to  be  paid  by  the  executor,  a  rateable  contribution  was  decreed, 
as  between  the  devisee  of  the  estate  and  the  legatees  and  annuitants 
under  the  will(o). 

We  have  before  seen{p)  that  a  testator  may  carve  specific  legacies 
out  of  a  specific  chattel;  now,  in  such  case,  if  the  chattel  so  parcelled 
out  ])rove  deficient,  such  specific  legacies  must  abate  proportionally 
amongst  themselves.  (</). 

And  in  a  devise  in  trust  to  sell,  but  not  for  less  than  10,000/.,  and 
to  pay  several  sums  amounting  to  7800/.,  and  the  overplus  moneys 
arising  from  the  sale  to  A.,  it  was  held  a  specific  legacy  of  10,000/., 
and  the  sale  producing  less,  that  A.  and  the  others  should  abate(r). 

Such  is  the  advantage  to  which  a  specific  legatee  is  entitled,  that  he 
should  not  contribute  with  the  other  legatees  in  case  of  a  deficiency. 
But,  on  the  other  hand,  he  is  subject  to  a  risk;  as,  for  example,  if 
such  specific  legacy  be  a  lease,  and  there  be  an  eviction;  or  if  goods, 
they  be  mislaid  or  burnt;  or  if  a  debt,  it  be  lost  by  the  insolvency  of 
the  debtor:  in  all  these  instances  such  specific  legatees  shall  receive  no 
contribution(5). 

[341]  On  the  same  principle,  legatees  in  certain  circumstances  are 
bound  to  refund  their  legacies,  or  a  rateable  part  of  them,  as  in  all 
cases  of  a  deficiency  of  assets  for  the  payment  of  debts(/).  If  the 
fund  be  merely  insufficient  to  pay  the  legacies,  and  the  executor  pay 
one  of  the  legatees,  a  distinction  is  to  be  remarked  between  cases, 
where  such  payment  was  voluntary,  and  where  it  was  compulsory; 
and  also  between  cases  in  which  the  assets  were  originally  deficient, 
and  where  they  became  so  by  his  subsequent  misapplication  of  them. 
If  the  executor  paid  the  legacy  voluntarily,  the  law  presumes  that  he 
has  sufficient  to  pay  all  the  legacies,  and  the  other  legatees  can  resort 
only  against  him.  The  legatee,  who  has  been  paid,  is  subject  to  no 
claim  on  the  part  of  the  other  legatees(tt);  provided,  according  to 
some  authorities(y),  the  executor  be  solvent;  but  if  the  executor  prove 
insolvent,  so  that  there  are  no  other  means  of  redress,  a  court  of 
equity  will  entertain  a  bill  to  compel  such  legatee  to  refund. 

In  case  the  assets  appear  to  have  been  originally  deficient,  if  the  ex- 
ecutor, either  voluntarily  or  by  compulsion,  pay  one  of  the  legatees, 
the  rest  shall  make  him  refund  in  proportion.     And,  even  if  such 

(n)  2  Fonbl,  377,  note  (q).     Duke  463. 

of  Devon  v.  Atkyns,  2  P.  VVms.  383.  (s)  Hinton  v.  Pinke,  1  P.  Wms.  540. 

Long  V.  Short,  1  P.  Wms.  403.   Webb  (0  2  Bl.  Com.  513.     Noel  v.  Rob- 

V.  Webb,  2  Vern.  111.  inson,  1  Vern.  94.     Hodges  v.  Wad- 
Co)  Headley  V.  Redhead,  Coop.  Rep.  dington,  2  Ventr.  360. 

50.  («)  Orr  V.  Kaines,  2  Ves.  191.  New- 

{p')  Vid.  sup.  302.  man  v.  Barton,  2  Vern.  205. 

(7)'sieechv.Thorington,2  Vcs.563.  {v)  Orr  v.  Kaines,  2  Ves.  194. 
(r)  Page  V.  Leapingwell,  18  Ves. 


CHAP.  IV.]  OF  REFUNDING  LEGACIES.  341 

legatee  obtain  a  decree  for  his  legacy,  and  be  paid,  the  other  legatees 
may  oblige  him  to  refund  in  the  same  manner.  But  if  the  executor 
had  at  first  enough  to  pay  all  the  legacies,  and,  by  his  subsequent 
wasting  of  the  assets,  they  become  deficient,  in  that  case  [342]  such 
legatee  shall  not  be  compelled  to  refund,  but  shall  retain  the  benefit 
of  his  legal  diligence  in  preference  to  the  other  legatees,  who  ne- 
glected to  institute  their  suit  in  time;  by  which  they  might  have  se- 
cured to  themselves  the  same  advantage(t^;).(l) 

Nor  is  a  legatee  bound  to  refund  at  the  suit  of  the  executor,  unless 
the  payment  by  him  were  compulsory  (a:);  or  unless  the  deficiency 
were  created  by  debts  which  did  not  appear  till  after  the  payment  of 
the  legacy (y):  in  either  of  which  cases,  the  executor,  as  well  as  a 
creditor,  may  compel  the  legatee  to  refund  the  legacy;  for  an  execu- 
tor who  pays  a  debt  out  of  his  own  purse  stands  in  the  place  of  a  cre- 
ditor, and  has  the  same  equity  as  against  suchlegatee(2^).(2) 

When  the  executor  has  paid  all  the  debts,  and  all  the  legacies 
above-mentioned,  pecuniary  and  specific,  he  must  in  the  last-place 
pay  over  the  surplus  or  residuum  to  the  residuary  legatee(a).  And 
although  the  residuary  legatee  die  before  payment  of  the  debts,  and 
before  the  amount  of  the  surplus  is  ascertained,  yet  it  shall  devolve 
on  his  representative(6). 

The  residue,  generally  speaking,  comprehends  such  legacies  as 
have   lapsed(c);  but  the  testator  may  by  the  terms  of  the  will  so 

(«;)  1  P.  Wms.  495,  note  1.     Ed-  Devise,  (Q  d.) 

wards  v.  Freeman,  2  P.  Wms.  446.  (a)  2  B\.  Com.  514.     4  Bac.  Abr. 

(a;)  Newman  v.  Barton,  2  Vern.  205.  428. 

ly)  Nelthrop  v.  Hill,  1  Ch.  Ca.  136.  (b)  Brown  v.  Farndell,  Garth.  52. 

(2)  4  Bac.  Abr.  428.     Vin.  Abr.  tit.  (c)  Jackson  v.  Kelly,  2  Ves.  285. 


(1)  Lupton  V.  Lupton,  2  Johns.  Cha.  Rep.  614. 

(2)  By  the  fourth  section  of  theactof  21st March,  1772  (Purd.  Dig.  518.  1  Dall.Laws, 
631.  1  Sm.  Laws,  383),  it  is  provided,  "  that  no  suit  shall  be  maintained  for  any  legacy, 
until  reasonable  demand  made  of  the  executor  or  executors,  administrator  or  administra- 
tors with  wills  annexed,  who  ought  to  pay  the  same,  and  an  offer  made  of  two  sufficient 
sureties  to  the  said  executor  or  executors,  administrator  or  administrators  aforesaid,  who, 
if  they  tliink  proper  to  accept  thereof,  sliall  become  bound  to  them,  the  said  executor  or 
executors,  administrator  or  administrators  aforesaid,  in  double  the  sum  of  the  legacy 
given,  where  such  legacy  is  ascertained  by  tlie  will,  and  where  not  ascertained  as  afore- 
said, in  double  such  sum  as  the  person  or  persons  shall  thinic  him,  her  or  themselves  justly 
entitled  to,  witli  condition  underwritten,  that  if  any  part,  or  the  wliole  thereof,  shall,  at 
any  time  after,  appear  to  be  wanting  to  discharge  any  debt  or  debts,  legacy  or  legacies, 
■wliich  the  said  executor  or  executors,  administrator  or  administrators  sball  not  have  other 
assets  to  pay,  that  then  he  the  said  legatee  shall  return  his  said  legacy,  or  siicli  part  thereof 
as  shall  be  necessary  for  the  payment  of  the  said  debts,  or  the  payment  of  a  i)roi>ortional 
part  of  the  said  legacies.  And  if  the  said  executors  or  administrators  sliall  not  think 
proper  to  accept  of  such  bond,  then  the  said  legatee  shall  file  the  same  with  the  clerk  of 
the  court,  before  obtaining  any  process  against  the  executor  or  executors,  administrator 
or  administrators;  otherwise,  and  in  default  thereof,  tlie  process  issued  sball  abate."  See 
JValden's  Ex.  v.  Payne,  2  Wash.  Rep.  1.  iM-wvason  v.  Davenport,  2  Call's  Rep.  9.'). 
StwaWs  Ex.  V.  Woodson,  2  Munf.  303.  Sheppard's  Ex.  v.  Stark,  3  Munf.  Rep.  2U. 
Rootea  v.  Webb,  4  Munf,  77. 


343  OF  PAYMENT  OF  RESIDUUM.  [hOOK  III. 

[313]  circumscribe  and  confine  the  residue,  as  that  the  residuary  le- 
gatee, instead  of  being  a  general  legatee,  shall  be  a  specific  legatee, 
and  then  he  shall  not  be  entitled  to  any  benefit  accruing  from  lapses, 
unless  what  shall  have  lapsed  constitute  a  part  of  the  particular  resi- 
due: as  where  A.  on  board  a  slii])  made  his  will,  and  gave  to  his 
mother,  if  alive,  his  gold  rings,  Inittons,  and  chests  of  clothes,  and  to 
his  executor,  who  was  on  board  with  him,  his  red  box,  arrack,  and  all 
things  not  before  bequeathed;  and  at  the  time  of  making  his  will  was 
entitled  to  a  considerable  leasehold  estate  by  the  death  of  his  father, 
of  his  right  to  which  he  was  ignorant:  It  was  held  that  A. 's  executor 
was  legatee  of  a  ])articular  residue,  namely,  of  what  the  testator  had 
on  board  the  siiip,  and  such  legacy  excluded  him  from  the  general 
residue.  But  that  as  A.'s  mother  died  in  hislifetime,  his  rings, but- 
tons, and  chests  of  clotlies  lapsed  into  such  particular  residue,  and 
devolved  on  his  executor,  not  as  executor,  but  as  legatee  of  such  par- 
ticular residue(^). 

If  the  residuary  estate  be  devised  to  A.  B.  and  C.  in  joint-tenan- 
cy, if  A.  die  in  the  lifetime  of  the  testator,  or  if  A.  die  after  the  tes- 
tator, but  before  severance  of  the  joint  tenancy  in  the  residue,  it 
shall  survive  to  the  two  others(e).  But  if  it  be  given  to  A.  B,  and 
C.  as  tenants  in  common,  on  the  death  of  one  of  them  in  the  lifetime 
of  the  testator,  his  share  shall  not  go  to  the  survivors,  but  shall  de- 
volve on  the  testator's  next  of  kin,  according  to  the  statute  of  dis- 
tribution, as  so  much  of  the  personal  estate  remaining  undisposed  of 
by  the  will(/). 

So  if  a  third  of  the  residuum  be  devised  to  each  of  three  persons, 
and  one  of  them  die  in  the  testator's  lifetime(^);(l)  or  if  the  devise 
be  revoked  as  to  one  of  such  residuary  legatees,  the  consequence 
shall  be  the  same(/<). 

If  A.  bequeath  all  the  sur])lus  of  his  personal  estate,  afterpayment 
of  the  debts  and  legacies,  to  J.  S.,  and  several  creditors,  although 
barred  by  the  statute  of  limitations,  commence  actions  against  the 
executor,  on  his  refusal  to  plead  the  statute,  equity  will  not,  in  fa- 
vour of  such  residuary  legatee,  compel  him  to  plead  it(z). 

It  is  a  general  rule,  that  where  a  question  arises  between  a  lega- 
tee, or  a  party  entitled  to  a  portion,  and  the  residuary  legatee,  the 
costs  shall  come  out  of  the  residue;  yet  if  no  question  arise  between 
such  individual  and  the  residuary  legatee,  but  the  question  relate 
merely  to  the  nature  of  the  interest  of  the  property  severed  from  the 
general  mass  of  the  estate,  the  costs  of  originating  that  question  are 

(rf)  Cook  V.  Oakley,  1  P.  Wms.  302.  (h)  6  Bro.  P.  C.  1. 

(e)  Webster  V.  Webster,  2  P.  Wms.  (/)  4  Bac.   Abr.   429.     1  Eq.  Ca. 

347.  Abr.  309.     11   Vin.  Abr,  269.     Lord 

(/)  Bagwell    V.    Dry,   1  P.  Wms.  Castleton   v.    Lord    Fansbaw,   Prec. 

700.    Cray  V.  WilUs,2  P.  Wms.  529.  Chan.  100.     Ex  parte  Dewdncy,  15 

(g)  Bagwell  V.  Dry,  1  P.  Wms.  700.  Ves.  jun.  498. 
Page  V.  Page,  2  P.  Wms.  488. 


(I)   Craighead  et  Ux.  V.  Given,  .fl dm.  10  Soi-f;.  k  llavic,  351. 


CHAP.  IV.]  OF  PAYMENT  OF  RESIDUUM.  343 

thrown  on  the  specific  property  itself:  as  where  the  testator  directed 
his  executors  to  purchase  92/.  per  annum  Bank  Long  Annuities,  in 
trust  for  his  sister  for  life,  and  after  her  decease,  the  principal  to  be 
distributed  among  certain  persons,  and  the  executors  purchased  the 
long  annuities  accordingly,  and  invested  the  same  in  their  names,  and 
after  a  lapse  of  seventeen  years  the  tenant  for  life  died,  when  a  question 
arose  in  respect  of  the  nature  of  the  interest,  which  had  been  so  long 
separated  from  the  residuary  estate.  Lord  Eldon,  C.  on  appeal  from 
the  Rolls,  held,  that  the  costs  of  the  suit  relative  to  the  trust  fund, 
the  right  to  which  was  in  question  in  the  cause,  should  be  paid  out 
of  the  same:  and  that  his  Honour's  decree,  directing  that  the  costs 
should  be  paid  out  of  the  testator's  general  estate,  should  in  that  par- 
ticular be  varied  (A;). 

[344]  If  there  be  no  residue,  the  residuary  legatee  has  a  claim  to 
nothing.  In  no  case  shall  he  compel  the  other  legatees  to  abate,  for 
although  this  consideration  might  occasionally  meet  the  testator's 
intention,  yet  it  would  in  most  instances  lead  to  great  confusion 
and  embarrassment(/).  But  it  has  been  held,  that  if  the  executor 
be  guilty  of  a  devastavit,  the  residuary  legatee  shall  not  suffer  ex- 
clusively; but  on  a  deficiency  of  assets,  in  consequence  of  such  mis- 
conduct, shall  come  in  pari  jicissu  with  the  other  legatees.  Yet 
according  to  that  decision,  the  court  had  it  not  in  contemplation  to 
afford  the  residuary  legatee  relief  in  case  the  testator  had  spent  the 
residue  in  his  lifetime;  for  the  inquiry  directed  was  not  what  per- 
sonal estate  the  testator  had  at  the  time  of  making  his  will,  but  what 
estate  he  had  at  his  death(w). 


Sect.  VIIL 

Of  an  executor's  being  legatee;  and  herein  of  his  assent  to  his 

own  legacy. 

In  case  of  a  legacy  bequeathed  to  the  executor,  if  he  take  possess- 
ion of  it  generally,  he  shall  hold  it  as  executor,  which  is  his  first,  and 
general  authority(«). 

[345]  The  union  of  the  two  characters  of  executor  and  legatee,  in 
one  and  the  same  person,  makes  no  differencc(i^).  His  assent  is  as 
necessary  to  a  legacy  vesting  in  him  in  the  capacity  of  legatee,  as  to 
a  legacy's  vesting  in  any  other  person,  and  that  on  the  same  princi- 
ple. Till  he  has  examined  the  state  of  the  assets,  he  is  incompetent 
to  decide  whether  they  will  admit  of  his  taking  the  thing  bequeathed 

{k)  Jenour  v.  Jenour,  10  Ves.  jun.  and  2, 
562.  (a)  3  Bac.  Abr.   81.      1.3  Co.  47. 

(/)  Fonnereau  v.  Poyntz,  1  Bro.  Ch.  Plowd.  520.  543.     10  Uo.  47  b.  Dyer, 

Rep.  478.     1  P.  Wms.  30G,  note  2.  277  b.     Young  v.  Holmes,  iStra.  70. 

(m)  1  P.  Wms.  305  &  306,  note  1  (6)  Off.  Ex.  22. 


345  OF  AN  executor's  being  legatee.        [book  hi. 

as  a  legacy;  or  whether  it  must  not  of  necessity  be  applied  in  satls- 
faclion  of  debts(c). 

His  assent  to  his  own  legacy  may,  as  well  as  his  assent  to  that  of 
another  legatee,  be  either  express  or  implied.  He  may  not  only  in 
positive  terms  announce  his  election  to  take  it  as  a  bequest,  but  such 
election  may  also  be  implied  from  his  language,  or  his  conduct((/). 
As  if  he  say,  that  he  will  have  it  according  to  the  will,  that  amounts 
to  an  assent  to  have  it  as  legatec(e).  So,  if  a  term  be  devised  to 
A.  the  executor  for  life,  and  afterwards  to  B.,  if  he  say  that  B.  will 
have  it  after  him,  that  implies  an  election  to  take  it  as  legatee(y). 
So  if  by  deed  reciting  that  he  has  a  term  for  years  by  devise,  he 
grants  it  over(jg-);  or  if  he  take  the  profits  of  it  to  his  own  use(A); 
or  if  he  repair  the  tenements  devised  at  his  own  cxpense(i);  all 
these  acts  indicate  an  assent  to  the  bequest:  in  like  manner,  if  he 
perform  a  condition  or  trust  annexed  to  the  devise;  as,  if  a  lessee 
[346]  for  years  devise  his  term  to  his  executor,  on  condition  that 
he  shall  pay  ten  pounds  to  J.  S.,  which  he  pays  accordingly:  this 
payment  amounts  to  an  election  on  his  part  to  take  the  lease  as  a 
legacy,  and  it  is  in  law  an  execution  of  the  legacy  for  ever;  for  he 
who  performs  the  charge  of  a  thing  claims  the  benefit  which  is  an- 
nexed to  it(A').  So,  if  a  lease  be  devised  to  an  executor  during  the 
minority  of  the  testator's  son,  in  order  that  the  executor  may  edu- 
cate him  out  of  the  profits,  if  he  educate  him  accordingly,  this  con- 
stitutes an  assent  to  take  the  lease  by  way  of  legacy,  and  not  as  ex- 
ecutor(/);  or  if  he  excludes  a  co-executor  from  a  joint  occupancy 
of  the  term  with  him(m),  that  is  also  an  agreement  to  the  legacy. 
An  assent  to  take  part  as  a  residuary  legatee,  is  an  assent  also  to  take 
the  whole  residue  in  the  same  character(7i). 

But  till  the  executor  has  made  his  election,  either  express  or  im- 
plied, he  shall  take  the  legacy  as  executor,  though  all  the  debts  have 
been  paid,  independently  of  such  bequest(o). 

Nor  is  the  entry  of  an  executor,  whether  before  or  after  probate, 
on  the  term  devised  to  him,  an  election  to  take  it  as  legatee(/?). 
Nor,  if  he  merely  say,  that  the  testator  left  all  to  him(q),  will  so 
ambiguous  an  expression  have  that  effect.  Yet  if  an  executor  being 
[347]  also  devisee  of  a  term,  grant  a  lease  of  it  by  the  name  of  ex- 
ecutor, that  amounts  to  a  claim  in  such  capacity(/*). 

If  a  legacy  be  left  to  A.  as  executor,  whether  expressly  for  his 

(c)  Ibid.  27.  2.  (/)  Ibid.  539. 

(d)  Com.  Dig.  Admon.    C.   6,  7.         (m)  Dyer,  277  b. 
Garrett  v.  Lister,  1  Lev.  25.  («)  2  Roll.  Rep.  158. 

(e)  Garrett  v.  Lister,  1  Lev.  25.  (o)  Com.  Dig.  Admon. C.  5.  1  Leon. 
(/)  Ibid.                                                21G. 

(?)  1  Roll.  Abr.  920.  {p)  Com.  Dig.  Admon.  C.  7.     Off. 

(A)  Ibid.  619.  Ex.  226. 

(0  Semb.  Cheney's  case,  1  Leon.         (y)  1  Roll.  Abr.  620. 
216.  (r)  1  Leon.  216. 

(A)  Plowd.  544. 


CHAP.  IV.]     OF  AN  executor's  BEING  LEGATEE.         347 

care  and  trouble,  or  not,  he  must  prove  the  will(.s),(l)  and  either 
act,  or  distinctly  show  his  intention  to  act,  before  he  shall  become 
entitled  to  it(/).  And  although  an  executor  prove  the  will,  yet  if 
he  do  not  appear  to  have  done  it  with  an  intenlion  of  really  actmg 
in  the  execution  of  it,  he  is  not  entitled  to  his  legacy(t/). 

Where  however  a  testator  named  two  persons  to  he  his  executors, 
and  gave  them  50/.  each,  upon  condition  of  their  taking  upon  them- 
selves a  certain  trust,  and  afterwards  used  these  words,  "  I  give  to 
my  cousin  J,  K.  50/.  whom  I  appoint  joint  executor,"  and  the  tes- 
tator also  gave  to  J.  K.'s  sisters,  legacies  of  50/.  each:  it  was  held, 
that  the  legacy  to  J.  K.  was  not  annexed  to  the  office  of  executor, 
and  that  he  was  entitled  to  it,  although  he  had  declined  to  act  in  the 
trusts  of  the  will(i;).(2) 

Nor  has  an  executor  a  right  to  give  himself  a  preference  in  regard 
to  a  legacy,  as  in  the  instance  of  a  debt. 

In  the  case  of  a  legacy  to  a  ti^ustee,  given  as  a  token  of  regard  and 
recompence  for  his  trouble,  payable  within  twelve  calendar  months 
after  the  decease  of  the  testatrix,  no  refusal  or  neglect  to  act  where 
necessary  appearing,  and  the  trustee  dying  nineteen  months  after  the 
testatrix  without  having  acted,  the  trustee  was  held  entitled  to  the 
legacy{iv). 

The.  rules  above  stated  in  respect  to  the  abatement  and  refunding 
of  legacies,  in  the  case  of  legatees  in  general,  apply  equally  to  the 
case  where  the  same  person  is  both  executor  and  legatee (ar),  and 
although  the  bequest  was  merely  as  a  recompence  for  his  executing 
the  tru3t(y). 

(s)  Reed  v.Devaynes,  3  Cox's  Rep.  Rep.  31. 

285.  (r,)  Dix  V.  Reed,  1  Sim.  &  Stu.  237. 

(0  Reed  V.  Devaynes,  3  Bro.  Ch.  [w)  Brydges  v.  Wotton,  1  Ves.  and 

Rep.  95.     Abbott  v.  Massie,  3  Ves.  Bea.  134. 

jun.  148.     Harrison  V.  Rowley,  4  Ves.  (a;)  2  Bl.  Com.  502.     Plowd.  545, 

iun.   212.     Stackpoole  v.  Howell,  13  in  note. 

Ves  jun.  417.  (y)  4  Bac.  Abr.  417.     Fretwell  v. 

(u)    Harford  v.  Browning,  1  Cox's  Stacy,  2  Vern.  434.   Attorney-General 

Rep.  302.   Freeman  v.  Fairlie,  3  Meriv.  v.  Robbins,  2  P.  Wms.  25. 


(1)  Rothnmler's  Mm.  v.  Myers,  Ex.  4  Desaus.  Rep.  '215. 

(2)  So  a  legacy  given  to  an  executor  as  nephe-w  of  the  testator— he  .is  entitled  to  the 
legacy  though  he  renounce  the  executorship.  Granberry  v.  Granberrijs,  1  Wash.  Rep. 
246. 

30 


347  A  debtor's  being  executor.  [book  III. 


Sect.  IX. 

Of  the.  testator^s  appointing  his  debtor  executor — ivhen  the  debt 
shall  be  regarded  as  a  specific  bequest  to  him — when  not. 

If  a  creditor  appoint  the  debtor  his  executor,  the  effect  of  such 
an  appointment  is  to  be  considered,  first  at  law,  and  then  in  equity. 
\\\  point  of  law,  such  nomination  shall  operate  as  a  release,  and  ex- 
tinguishment of  the  debt;(l)  on  the  principle  that  a  debt  is  merely 
[348]  a  right  to  recover  the  amount  by  way  of  action,  and  as  an 
executor  cannot  maintain  an  action  against  himself,  his  appointment 
by  the  creditor  to  that  office  discharges  the  action,  and,  consequent- 
ly, discharges  the  legal  remedy  for  the  debt(«).  Thus,  if  the  obli- 
gee of  a  bond  make  the  obligor  executor,  this  amounts  to  a  release 
at  law  of  the  debt(/j):  If  several  obligors  be  bound  jointly  and  se- 
verally, and  the  obligee  constitute  one  of  them  his  executor,  it  is 
an  extinguishment  of  the  debt  at  law,  and  the  executor  is  incapable 
of  suing  the  other  obligors(c).  The  debt  is  in  like  manner  released 
where  only  one  of  several  executors  is  indebted  to  the  testator,  for 
one  executor  cannot  maintain  an  action  against  another(6f);  and  after 
the  death  of  such  executor,  the  surviving  executors  cannot  sue  his 
representative  for  the  debt(e).(2)  Nor  is  the  case  varied  by  the 
executor's  dying  without  having  proved  the  will,  or  having  admin- 
istered(/),  or  even  by  his  refusal  to  act  with  his  co-executors(^), 
unless  he  formally  renounced  the  office  in  the  spiritual  court:  such 

(tr)3Bac.  Abr.  11.   2B1.  Com.  511,  (^/)  Ibid.  31. 
512.  Off.  Ex.  31.    Wankford  v.Wank-  (e)  Ibid.  32.     Plowd.  261.     Cross- 
ford,  Salk.  299.     Plowd.  186.     Com.  man's  case,  Leon.  320. 
Dig.  Admon.  B.  5.     Roll.  Abr.  920,  (/)  Wankford  v.  Wankford,  Salk. 
921.  5  Co.  30.     Harg.  Co.  Litt.  264  300.    Plowd.  184.     Off.  Ex.  31. 
b,  note  1.  (g)  Wankford  v.  Wankford,  Salk. 

(6)  8  Co.  136.  3087 

(c)  Off.  Ex.  31.     II  Vin.  Abr.  398. 


(\)Puseij  V.  Ckmson,  9  Serg.  &Rawlp,208.  Stevens,  Adm.  v.  Gaylord,  11  Mass,  Rep. 

266. 

(2)  By  the  second  section  of  the  act  of  April  3,  1829  (Pamph.  Laws,  122),  it  is  pro- 
vided, "  that  in  all  cases  where  a  creditor  hath  appointed  or  shall  appoint  his  judgment 
debtor  his  executor,  and  the  said  judgment  is  a  lien  on  the  real  estiate  of  such  executor, 
and  the  same  is  bequeathed  specifically  to  a  legatee,  or  generally  in  the  residuary  clause 
of  such  testator's  will;  or  where  any  testator,  having  a  judgment  situate  as  aforesaid, 
shall  have  creditors  interested  in  preserving  the  lien  of  such  judgment,  that  such  legatee 
or  creditors  so  interested  in  such  judgment,  may  suggest  their  interest  in  the  same  upon 
the  record  thereof,  and  issue  a  writ  of  .v«>e /a d«.s  against  the  defendant  to  revive  the 
same,  and  continue  the  lien  thereof  at  any  time  when  such  proceedings  shall  be  necessary 
under  the  laws  of  this  commonwealth,  which  judgment  so  revived  shall  remain  a  lien  for 
the  use  of  all  persons  interested  therein." 


CHAP.  IV.]  A  debtor's  BEING  EXECUTOR.  348 

a  renunciation,  indeed,  shall  prevent  the  release  of  his  debt:  for  he 
could  no  more  be  compelled  to  accept  a  release,  than  a  deed  of 
grant(//). 

In  all  these  cases  the  legal  remedy  is  destroyed  by  the  act  of  the 
party,  and  therefore,  is  for  ever  gone(/);  but  the  effect  is  different 
[349]  where  it  is  suspended  merely  by  the  act  of  lavv(Ar);  as  if  ad- 
ministration of  the  effects  of  a  creditor  be  committed  to  the  debtor, 
this  is  only  a  temporary  privation  of  the  remedy  by  the  legal  ope- 
ration of  the  grant(/):  Thus,  if  the  obligor  of  a  bond  administer  to 
the  obligee,  and  die,  a  creditor  of  the  obligee  having  obtained  ad- 
ministration de  bonis  non,  may  maintain  an«  action  for  such  debt 
against  the  executor  of  the  obligor(wi).  So,  if  the  executrix  of  an 
obligee  marry  the  obligor,  such  marriage  is  no  release  of  the  debt, 
for  the  testator  has  done  no  act  to  discharge  it,  and  the  husband  may 
pay  it  to  the  wife  in  the  character  of  executrix.  If  he  do  not,  the 
remedy  is  suspended  merely  by  the  legal  effect  of  the  coverture,  and 
on  her  death,  the  administrator  de  bonis  non  of.  the  testator  will  be 
equally  entitled  to  that  debt,  as  to  any  others  outstanding(n).  It 
seems  also,  that  the  naming  of  a  debtor  executor  durante  minoritate 
is  no  discharge  of  the  debt,  since  he  is  only  executor  in  trust  for  the 
infant  till  he  comes  of  age(o). 

In  equity,  the  consequence  of  the  testator's  nominating  his  debtor 
executor  is  to  be  regarded,  first,  with  reference  to  creditors;  and  then, 
to  legatees. 

As  against  the  testator's  creditors,(l)  equity  will  never  permit 
him  by  constituting  his  debtor  executor  to  disappoint  them:  There- 
fore, where  the  testator  has  not  left  a  fund  sufficient  for  the  payment 
of  his  own  debts,  in  that  case,  the  debt  of  his  executor  shall  be  as- 
sets; the  duty  remaining,  although  the  action  at  law  be  gone,  and 
the  executor  shall  be  liable  to  account  for  such  debt  in  the  spiritual 
court,  or  in  a  court  of  equity.  It  were  highly  unreasonable  that  the 
claims  of  creditors  should  be  defeated  by  a  release,  which  was  abso- 
lutely voluntary  (7;).  (2)  In  respect  to  legatees,  equity  will,  generally 
speaking,  allow  the  appointment  of  a  debtor  executor  [350]  to  ope- 

(Ji)  Waukford  v.  Wankford,  Salk.  («)  Grossman's  Case,  Leon.   320. 

307.  Grossman    v.    Reade,     Moore,     236. 

(0  Dorchester  v.  Webb,  Cro.  Gar.  Wankford  v.  Wankford,  Salk.  306. 

373.     Wankford  v.  Wankford,  Salk.  (0)  11  Viner's  Abr.   100.     Gaweth 

302.  Abram  v.  Cunningham,  1  Ventr.  v.  Pliilips,  Lord  Raym.  G05. 

303.  {]))  Wankford  v.  Wankford,  Salk. 
{k)  Wankford  v.  Wankford,  Salk.      302.  306.     Off.  Ex.  31.     2  Bl.  Com. 

303.  512.      Plowd.    186.      Shep.   Touchs. 

(/)  Off.  Ex.  32.     8  Co.  136.  497,  498.     Simmons  v.  Gutteridge,  13 

(w)  Lockier  v.  Smith,  Sid.  79.  Ves.  264. 


(1)  Pmey  v.  Clenwon,  9  Serg.  &  Rawlc,  204.     Wood  v.  Tallmun  and  Woodward'' s  Ex- 
ecutors, Cox's  N.  .J.  Rep.  153.     Stevem,  Adm.  v.  (iaylord,  11  M;iss.  \ic\u  'ifiG. 

(2)  An  executor  admitting  himself  to  be  a  debtor  to  ,the  testator  at  his  death,  will  be 
ordered  to  pay  the  debt  into  court.     Rotlrwdl  v.  Uoth-well,  2  Sim.  &c  Stu.  Rep.  218. 


350  A  debtor's  being  executor.  [nooK  ni. 

rate  as  a  discharge  of  his  dcht.  For  the  (lcl)t  is  considered  in  the 
light,  of  a  specific  hequest  or  legacy  to  the  dehtor,  for  the  purpose  of 
discharging  the  debt,  and  therefore,  though  like  all  other  legacies,  it 
shall  not  be  paid,  or  retained  till  the  debts  are  satisfied,  yet  the  ex- 
ecutor has  a  right  to  it  exclusive  of  the  other  legatees(5'). 

Euttliis  rule,  with  reference  to  legatees,  is  subject  to  a  great  va- 
riety of  exceptions.  In  equity  such  debt  shall  not  be  released,  even 
as  against  legatees,(l)  if  the  presumption  arising  from  the  appoint- 
ment of  a  debtor  to  the  executorship  be  contradicted  by  the  express 
terms  of  the  will:  or  by  strong  inference  from  its  contents.  As 
where  a  testator  leaves  a  legacy,  and  directs  it  to  be  paid  out  of  a 
debt  due  to  him  from  the  executor;  such  debt  shall  be  assets  to  pay 
not  merely  that  specific  legacy,  but  all  other  legacies(r).  In  like 
manner,  if  he  leave  the  executor  a  legacy,  it  is  held  to  be  a  sufficient 
indication,  that  he  did  not  mean  to  release  the  debt.  And  in  such 
case,  the  executor  shall  be  trustee  to  the  amount  of  the  debt  for  the  re- 
siduary legatee,  or  next  of  kin(5).  So  where  a  testator  bequeathed 
large  legacies,  and  also  the  residue  of  his  estate,  to  his  executors,  one  of 
whom  was  indebted  to  him  by  bond  in  three  thousand  pounds,  it 
was  decreed  that  this  debt  should  be  added  to  the  surplus,  and  that 
both  executors  were  equally  entitled  to  it(/).(2)  So  where  a  debtor 
to  the  testator  was  appointed  executor,  altliough  without  a  legacy,  yet 
it  appearing  by  the  tenor  of  the  will  that  the  testator  considered  him 
in  the  light  of  a  mere  trustee  of  his  whole  property,  his  debt  was 
clearly  held  not  to  be  discharged(^<).  So  where  A.  mortgaged  his 
estate  to  B.  who  i)aid  no  money  in  consideration  of  the  mortgage,  but 
gave  him  a  bond  for  130/.  and  then  A.  died,  having  appointed  B.  his 
executor,  the  bond  was  decreed  to  be  assets  in  the  hands  of  B.,  and 
applicable,  after  payment  of  the  funeral  expences  and  legacies,  to  the 
exoneration  of  the  real  estate  in  favour  of  the  heir[w). 

(q)   2   Bl.    Com.  512.     Harg.  Co.  (0  Brown  v.  Selwyn,  Ca.  Temp. 

Lht.  261  b.  note  1.  Talbot,  210.  4  Bro.  P.  C.  180.   3  Bac. 

(r)  3  Bac.  Abr.  II.     Flud  v.  Rum-  Abr.  12. 

cey,  Yelv.  160.  (m)  Berry  v.  Usher,  11  Ves.  jun.  87. 

(s)  Carey  v.  Goodinge,  3  Bro.  Ch.  (w)  Fox  v.  Fox,  1  Atk.  463. 
Rep.  110. 


(1)   Woodv.  Tallman's  Ex.  et  al,  Coxe's  N.  J.  Rep.  158. 

('2)  Pusey  V.  Clemso7i,  9  Serg.  &  llawle,  204.  See  also  Flemingv.  Boiling,  3  Call,  75; 
Hall  V  Hall,  2  M'Cord's  Cha.  Rep.  304;  Winship  v.  Bass,  12  Mass.  Rep.  199;  cases  in 
which  the  rule  did  not  prevail  as  against  residuary  legatees,  the  debt  due  by  the  executor 
being  held  assets  for  their  payment. 


CHAP.  IV.]  THE  RESIDUE  UNDISPOSED  OF.  351 


[351]  Sect.  X. 

Of  the,  residue  undisposed  of  by  the  loill,  when  it  shall  go  to  the 
executor — when  not. 

If  the  testator  make  no  disposition  of  the  residue, a  question  arises, 
to  whom  it  shall  belong,  and  this  is  a  subject  which  involves  in  it  a 
great  variety  of  distinctions(«). 

The  result  of  the  numerous  cases  on  this  subject  appears  to  be  this: 

The  whole  personal  estate  of  the  testator  is,  in  point  of  law,  de- 
volved on  the  executor;  and  if  after  payment  of  the  funeral  expences, 
testamentary  charges,  debts  and  legacies,  there  shall  be  any  surplus, 
it  shall  vest  in  him  beneficially. 

If  it  shall  appear  on  the  face  of  the  will,  either  expressly,  or  by 
sufficient  implication,  that  the  testator  meant  to  confer  upon  him 
merely  the  office,  and  not  the  beneficial  interest,  equity  will  con- 
vert the  executor  into  a  trustee  for  those  on  whom  the  law 
[352]  would  have  cast  the  residue  in  case  of  a  complete  intestacy; 
that  is  to  say,  the  next  of  kin.  As,  where  the  testator  has  styled 
him  in  his  will  an  executor  in  trust,  or  has  used  other  expressions  of 
the  same  import((^).  But  an  executor  being  called  a  trustee  as  to 
specific  trusts  imposed  upon  him  distinct  from  his  appointment  as 
executor,  will  be  entitled  to  the  residue,  as  no  inferpnce  can  be  drawn 
therefrom  of  the  testator's  intention  to  make  him  a  trustee  of  the  resi- 
due. And  executors  taking  the  residue,  take  it  precisely  in  the  same 
plight  as  residuary  legatees  would  take  it(c).  Where  the  testator  ap- 
pointed the  American  ambassador  his  executor,  or  such  other  person 
as  should  be  the  American  ambassador  at  the  time  of  the  testator's 
death.  Sir  William  Grant,  M.  R.  held  that  to  be  a  circumstance  con- 
nected with  others  indicative  of  an  intention  to  confer  upon  him  the 
office  only,  he  being  appointed  not  in  his  individual  character,  and  as 
a  friend,  but  in  the  capacity  of  ministcr(<:/).  So,  where  the  testator  has 
begun  to  make  a  disposition  of  the  surplus,  but  has  not  proceeded  to 
complete  it,  there  also  the  executor  shall  be  excluded.  As  where  a 
residuary  clause  is  inserted  in  the  will,  and  the  testator  has  omitted  to 
name  the  residuary  legatee(e).  But  a  blank  space  between  the  last 
line  of  a  will  and  the  signature  raises  no  presumption  of  an  intention 

(a)  1  P.  Wms,550,notel.  SFonhl.  ((•)  Pratt  v.  Sladden,   14  Ves.  jun. 

13I,noto(k).  3Bac.  Abr.  67.  II  Vin.  1!)3.     Dawson  v.  Clark,  15  Ves.  jun. 

Abr.  407.  409.     IH  Ves.  jun.  217. 

(/»)   1  P.  Wms.  550,  note  1.     Pring  {d)  Urquhart  v.  King,  7  Ves.  jun. 

V.   Pring,  2   Vern.    99.     Rachfield  v.  230.     See  also  Grillitlis  v.  Hamilton, 

Careless,  2  P.  Wms.   I5B.     Graydon  12  Ves.  jun.  309. 

V.  Hicks,  2  Atk.  IB.     Dean  v.  Dallon,  (e)  1  P.  Wms.  550,  note  I.  Wheel- 

2   Bro.    Ch.    Rep.    034.     Bennct    v.  er  v.  Sheer,  Moseley,  2H8.     JHsliop  of 

Batchelor,3Bro.Ch.  Rep.  28.  Wheel-  (Moyne  v.  Young,   2  Ves.  91.     Lord 

er  V.  Sheer,  Moseley,  28H.    Loc-kyer  v.  NortI)  v.   Purdon,   495.     Hornshy  v. 

Simpson,  301 .     Bennett  v.  Batciielor,  Fineh,  2  Ves.  jun.  78.     Vid.  also  Mor- 

1  Ves.  jun.  tJ3.  daunt  v.  Hussey,  4  Ves.  jun.  117,  and 


352  THE  RESIDUE  UNDISPOSED  OF.  [bOOK  III. 

to  dispose  of  the  residue  against  tlie  legal  right  of  the  cxecutov{f). 
Wlicre  an  executor  lias  general  and  specific  legacies,  not  expressly  for 
his  care  and  trouble,  upon  the  evidence  raising  no  direct  intention  in 
his  favour,  but  mere  inference  from  equivocal  declarations,  with  an 
intention  to  make  an  express  residuary  disposition,  the  executor  will 
be  a  trustee  of  the  residue(,§-).  So  the  executor  shall  be  excluded 
where  the  residuary  clause  is  rased  and  become  illegible(A).  Nor 
where  the  testator  has  regularly  bequeathed  tl)e  surplus,  although  the 
residuary  legatee  first  die,  and  consequently  it  be  undisposed  of  at 
the  time  of  the  testator's  death,  shall  it  belong  to  the  executor(/). 
Nor  shall  the  executor  be  entitled  to  it  where  the  testator  has  given 
him  a  legacy  expressly  for  his  care  and  trouble;  for  that  is  a  strong 
case  on  which  to  raise  a  resulting  trust,  not  merely  on  the  absurdity 
of  supposing  a  testator  to  give  a  part  of  the  fund  to  that  person  for 
whom  he  intended  the  whole,  but  as  it  is  evidence  that  he  considered 
him  as  a  trustee  for  some  other,  who  should  be  the  object  of  the  care 
and  trouble  for  which  the  bequest  was  meant  as  a  compensation(A'). 
Still,  however,  the  principle,  that  it  shall  not  be  presumed  to  have 
been  the  testator's  meaning  thus  to  give  part  and  [353]  all  to  the  ex- 
ecutor, has  been  allowed  alone  and  unaided  to  operate  as  an  exclu- 
sion. Hence  it  is  a  settled  rule  in  equity,  that  a  pecuniary  legacy 
bequeathed  to  an  executor  alone,  or  to  an  executor  who  is  also  a  trus- 
tee, affords  a  sufficient  argument  to  debar  him  of  the  residue(/).(l) 

A  direction  in  a  will  "  to  keep  accounts,"  was  held  upon  demurrer, 
to  aSbrd  a  presumption  that  the  executrix  was  not  meant  to  take  be- 
neficially; but  parol  evidence  being  admitted  oil  behalf  of  the  execu- 
trix, to  show  that  she  was  intended  to  take  the  residue  for  her  own 
benefit,  and  such  evidence  being  satisfactory,  the  bill  by  the  next  oi 
kin  was  dismissed(?;z). 

A  bequest,  that  the  whole  of  the  testator's  property  shall  pass  by 
his  codicil  "according  to  law,"  will  exclude  the  executor,  and  make 
him  a  trustee  for  the  next  of  kin(/i).(2) 

Giraud  v.  Hanbury,  3  Meri.  Rep.  150.  Careless,  2  P.  Wms.  158.     Cordell  v. 

(/)  White  V.  Williams,  3  Ves.  and  Noden,   2   Yern.    148.     Newstead  v. 

Bea.  72.     S.  C.  Coop.  Rep.  58.  Johnston,  2  Atk.  46. 

( if)  Langham  v.  Sandford,  17  Ves.  (/)  1  P.  Wms.  550,  note  1.   2  Fonbl. 

jun.''435,  and  on  appeal,  19  Ves.  641.  131,  note  (k).     Ball  v.  Smith,  2  Vern. 

2  Meri.  Rep.  6.  676.     Joslin   v.   Brewitt,  Bunb.   112. 

(/z)  Farrington  v.    Knightly,   1  P.  Farrington  v.  Knightly,  1  P.Wms.  544. 

Wms.  549.  Davers   v.  Davers,   3    P.   Wms.  40. 

((•)  1  P.  Wms.  550,  note  1.  NichoUs  Prec.  Ch.  107.     Gibbs  v.  Ramsey,  2 

V.    Crisp,    Ambl.    769.     Bennet    v.  Ves.  and  Bea.  294.     Bull  v.  Kingston, 

Batchelor,  3  Bro.  Ch.  Rep.  28.  1  Meri.  Rep.  314. 

(A-)  2  Fonbl.  131,  note  (k).  Bp.  of  (m)  Gladding  v.  Yapp,  5  Mad.  R.  56. 
Cloyne  v.  Y'oung,  2  Ves.  97.     Foster         (n)  Ld.  Cranley  v.  Hale,  14  Ves. 

V.  Munt.  1   Vern.  473.     Rachfield  v.  jun.  307. 


(1)  Where  there  are  several  executors,  and  unequal  legacies  are  given  to  tliem,  they 
wcre  not  excluded  from  the  residue  in  Yirginia  before  the  act  of  1785,  c.  61.  Shelton  v. 
SheUoii's,  Granhernfs  Ex.  v.  Granberrij,  1  Wash.  Rep.  53.  246.  Dykes  v.  Woodhome^s 
Mm.  r>  Rand.  Rep.  288. 

(2)  So  where  the  testator  ordered  all  the  residue  and  remainder  of  his  personal  estate 


CHAP.  IV.]  THE  RESIDUE  UNDISPOSED  OF.  353 

If  the  legacy  to  the  executor  be  specific,  it  shall  equally  exclude 
him(o).  Nor  will  the  rule  be  varied  by  the  testator's  having  be- 
queathed legacies  to  the  next  of  kin(7;).  For  it  is  founded  rather 
on  an  implied  intent  to  bar  the  executor,  than  to  create  a  trust  for  the 
next  of  kin;  and,  therefore,  if  the  executor  have  a  legacy,  and  there 
be  no  next  of  kin,  a  trust  shall  result  for  the  cro\vn(^).  It  is  also 
settled,  that  in  case  the  widow  of  the  testator  be  executrix,  she  is,  in 
respect  to  the  residue,  precisely  in  the  same  situation  as  any  other 
person  appointed  to  the  office(r);  unless  the  bequest  to  her  of  a  spe- 
cific legacy,  consisting  of  property  which  was  hers  before  marriage, 
may  vary  the  rule(5). 

Executors  entitled  to  the  residue  undisposed  of  will  take  a  legacy 
to  a  charity  void  by  the  statute  9  Geo.  2.  c.  36,  for  their  own  benefit, 
against  the  claim  of  the  next  of  kin(^). 

A  general  devise  and  bequest  to  executors,  having  equal  legacies  of 
stock  for  mourning,  their  heirs,  executors,  &c.,  on  the  especial  trust  to 
devote  all,  both  real  and  personal,  to  debts,  legacies,  and  annuities,  is 
a  resulting  trust  of  the  residue  for  the  heir  at  law  and  next  of  k'm[ic). 

In  respect  to  that  class  of  cases  in  which  the  executor  shall  be 
entitled  to  the  residue,  although  he  be  a  legatee,  it  may  be  stated  as 
[354]  an  universal  rule,  that  wherever  the  legacy  is  consistent  with 
the  intent  that  the  executor  should  take  the  whole,  a  court  of  equity 
will  not  disturb  his  legal  right.  And  therefore,  where  a  gift  to  an 
executor  is  only  an  exception  out  of  another  legacy;  as  if  a  library 
be  bequeathed  to  A.,  out  of  which  the  executor  is  to  select  ten  books 
for  himself;  it  shall  not  exclude  him  from  the  residue,  inasmuch  as  it 
was  necessary  to  make  an  express  exception(y).  Nor  where  a  legacy 
is  given  by  a  codicil  to  one  of  two  executors(2^;).  Nor  where  the 
executorship  is  limited  to  a  particular  period,  or  determinable  on  a 
contingency,  and  the  legacy  to  the  executor,  at  the  end  of  such  pe- 
riod, or  on  such  contingency's  taking  place,  is  bequeathed  over,  shall 

(o)  Randall  v.  Bookey,  2  Vern.  425.  Ambl.  12G.  2  Eq.  Ca.  Abr.  444.  Mar- 

Southcot  V.  Watson,  3  Atk.  226.  Mar-  tin  v.  Rebow,  1  Bro.  Ch.  Rep.  154. 

tin  V.  Rebow,  1  Bro.  Ch.  Rep.  154.  (s)  2  Fonbl.  130,  note  1.     7  Bro.  P. 

(/?)  2  Fonbl.  131,  note  (k).     Bay-  C.  511.  See  Attorney-General  v.  Hoo- 

ley  V,  Powell,  2  Vern.  361.     Wheeler  ker,  2  P.  Wms.  338. 

V.  Sheer,  Moseley,  288.     Andrew  v.  (/)  Dawson  v. Clark,  15  Ves.jun. 409. 

Clark,  2  Ves.  162.  Kennedy  v.  Stains-  (u)  Southouse  v.  Bate,  2  Ves.  and 

by,  1  Ves.  jun.  66,  in  note.     Vid.  tarn.  Bea.  396. 

Attorney-General  V.Hooker,  2  P.  Wms.  (?»)  1  P.  Wms.  550,  note  1.  GrilTith 

337.  V.  Rogers,    Prec.  Chan.   231.     2  Eq. 

(rj)  Middlcton  v.  Spicer,  1  Bro.  Ch.  Ca.  Abr.  444,  pi.   58.     Newstead  v. 

Rep.  201.  .Johnston,    2    Atk.    45.     Sonthcot   v. 

(r)  Lady  Granville  v.  Duchess  of  Watson,  3  Atk.  229.     Vid.  also  7  Bro. 

Beaufort,  1  P.  Wms.  115.  550,  note  1.  P.  C.  511. 

2  Fonbl.  130,  note  1.     Lake  v.  Lake,  {lu)  Prattv.Sladden,  14  Ves.jun.193. 


(except  his  (liiiinj,'-t!ible  and  two  stoves)  to  be  sold  liy  [niblii;  sale  l)y  his  executors,  or  the 
survivor  of  them,  us  soon  as  niif^htbe  after  liis  decease,  Co  the  best  advantage,  it  washehl 
that  this  direction  made  tliem  trustees  for  the  next  of  kin.  Grouser  v.  Eckarl,  1  Binn.  575. 


354  THE  RESIDUE  UNDISPOSED  OF.  [hOOK  III. 

it  defeat  his  claim  to  the  surplus(.r).  Nor  shall  a  gift  of  only  a  lim- 
ited interest  for  the  life  of  tlie  executor  have  that  eflect(?/).  For 
in  these  cases  the  legacy  is  considered  as  an  exception  out  of  the 
general  gift  to  tlie  devisee  over,  and  therefore  not  such  a  legacy  as 
shall  exclude  the  executor  from  the  residue,  since  it  does  not  involve 
the  absurdity  of  giving  expressly  a  part  where  the  whole  was  intended 
to  be  given(z).  But  the  limited  executor  has  an  interest  in  the  resi- 
due only  while  his  executorship  continues,  on  the  determination  of 
which  it  devolves  on  the  general  executor(«). 

If  the  executor  be  an  infant,  a  legacy  bequeathed  to  him  shall  not, 
it  seems,  exclude  him  from  the  residue,  because  his  infancy  renders 
him  unfit  to  be  a  trustee,  and,  therefore,  he  shall  be  intended  to  have 
been  named  for  his  own  benefit(6). 

[355]  That  parol  evidence  may  be  received  for  the  purpose  of  re- 
butting a  resulting  trust,  is  sufficiently  established  by  a  series  of  cases; 
but  it  is  admitted  with  great  caution(c),  and  although  not  restricted 
to  what  passed  at  the  time  of  making  the  will(^),  yet  must  point  to 
the  testator's  intention  at  that  time  only:  evidence  of  his  subsequent 
intention  will  have  no  effect(e).  Nor  shall  parol  evidence  for  such 
purpose  be  admitted,  where  the  executor  is  declared  by  the  will  to  be 
a  trustee;  or  where  the  bequest  to  an  executor  is  expressed  in  terms 
equivalent  to  such  a  declaration,  as  where  the  legacy  is  given  to  him 
for  his  care  and  trouble  in  fulfilling  the  will(y). 

An  executor  taking  a  contingent  interest  under  the  will,  was  held 
not  precluded  from  giving  evidence  of  the  testator's  intention,  that 
he  should  have  tlie  residue  beneficially,  nothing  upon  the  face  of  the 
will  indicating  that  he  was  to  take  the  office  merely  (^').(l) 

(a;)2Fonbl.  131,note(k).     Hoskin  land,  210.     Nichols  v.  Osborn,  420. 

V.  Hoskins,  Prec.  in  Clian.  263.  Blinkhornv.  Feast,  2  Ves.  28.  Nourse 

{y)  2  Fonbl,  131,  note  (k).     Lady  v.  Finch,  1  Ves.  jun.  358. 
Granville  v.  Duchess  of  Beaufort,  1  P.  (fZ)  Sed  vid.  Duke  of  Rutland  v.  Du- 

"Wms.  114.   Jones  V.  Westcorab,  Prec.  chess    of    Rutland,  2  P.  Wms.  209. 

Chan.  316.     Nourse  v.  Finch,  1  Ves.  Nourse  v.  Finch,  1  Ves.  jun.  359. 
jun.  356.  (f)  Lake  v.    Lake,    1    Wils.  313. 

(z)   1  P.  Wms.  116,  note  1.  Ambl.  126.     S.  C.  Clennel  v.  Lewth- 

(a)  Vid.  Prec.  in  Chan.  264.  waite.     Decreed  per  M.  R.  2  Ves.  jun. 

{b)  Lamplugh  v.  Lamplup:h,  1   P.  465.     Decree  affirmed  by  Lord  Chan- 

Wms.    112.     See  also   Blinkhorn  v.  ccllor,  ibid.  644.     Walton  v.  Walton, 

Feast,  2  Ves.  30.  14  Ves.  jun.  318. 

(c)  2  Fonbl.  135,  note  1.   Rochfield         (/)  Rochfield  v.Careless,2  P.Wms. 

V.    Careless,    2   P.   Wms.  158.  160.  158. 
Duke  of  Rutland  V.  Duchess  of  Rut-         (d-)  Lynn  v.  Beaver,    1   Turn.   63. 


(1)  By  the  11th  section  of  the  act  of  7th  April,  1807  (Purd.  Dig.  802.  4  Sm.  Laws, 
402),  it  is  provided,  that  "  where  any  person  or  persons  shall  hereafter  die,  having  made 
and  executed  any  testament  and  last  -nill,  and  sliall  not  therein  have  disposed  of  the  resi- 
due of  his  or  her  personal  estate,  the  executor  or  executors  therein  named  shall  distribute 
such  undisposed  of  residue  to  and  among  tlie  next  of  kin,  agi-eeably  to  the  intestate  laws  of 
this  commonwealth;  but  nothuig  in  tliis  section  contained  shall  be  construed  to  affirm  or 
deny  the  right  of  any  executor  or  executors  to  such  undisposed  of  residue  prior  to  the 
passing  of  this  act."    There  had  been  previous  to  the  passage  of  tliis  act  much  diversity 


CHAP.  IV.]  THE  RESIDUE  UNDISPOSED  OF.  355 

of  opinion  upon  the  question,  whether  in  Pennsylvania  the  executor  was  a  trustee  for  the 
next  of  kin  of  undisposed  of  personal  property,  or  took  it  beneficially.  The  uncontradicted 
dictum  of  Chief  Justice  M'Kean  in  Boudinot  v.  Bradford  ('2  Ball.  268),  the  decision 
of  President  Wilson  in  Davis  v.  Davis's  Ex.  (C.  Pleas  of  Delaware  county,  April,  1806, 
cited  3  Binn.  566),  and  the  dissent  of  Judge  Yeates  in  Wilson  v.  JfHso?i  (3  Binn.  562), 
show  the  then  prevailing  impression  that  the  law  was  the  same  as  the  English  law.  The 
case  of  Grosser  v.  Eckart  (1  Binn.  575),  was  decided  upon  the  intention  of  the  testator,  as 
exhibited  in  that  particular  will,  "taking  for  granted,"  to  use  the  words  of  Chief  Justice 
Tilghman  (1  Binn.  584),  "  that  our  law  was  the  same  (as  the  English  law)  when  that  will 
was  made;"  but  in  the  case  of  Wilson  v.  Wilson  (3  Binn.  566),  the  Supreme  Court  (two 
judges  against  one)  decided,  that  an  executor  was  and  had  always  been  trustee  for  the 
next  of  kin  in  all  cases  in  Pennsylvania;  and  that  opinion  was  repeated  in  a  subsequent 
case  between  tlie  same  parties  {Wikonv.  Wilson,  9  Serg.  &  Rawle,  428).  Where,  how- 
ever, a  testator  devised  all  his  estate,  both  real  and  personal,  to  his  executors  and  their 
heirs,  gave  directions  as  to  the  manner  of  paying  his  debts,  and  then  gave  the  residue,  if 
any,  to  the  discretion  of  his  executors,  to  distribute  in  such  manner  as  they  may  think 
proper,  it  seems  that  the  executors  take  beneficially.  Case  of  J^Teave's  Estate,  9  Serg.  & 
Rawle,  186.  In  Massachusetts,  since  the  statute  of  1783,  cap.  32,  sect.  1  &  7,  the  executor 
is  in  all  cases  trustee  for  the  next  of  kin  of  the  undisposed  of  residue.  Hays,  Ex.  v.  Jaclo 
son,  6  Mass.  Rep.  153.  So  also  in  North  Carolina,  since  the  act  of  1716.  HHIm.  Hill,  2 
Hayw.  Rep.  298.     See  1  Penn.  Rep.  44. 


31 


356  INCOMPETENCY  OF  INFANT  EXECUTOR.        [bOOK  III. 


CHAPTER  V. 


OF  THE  INCOMPETENCY  OF  AN  INFANT  EXECUTOR — OF  THE  ACTS  OF 
AN  EXECUTOR  DURANTE  MINORITATE OF  A  MARRIED  WOMAN  EX- 
ECUTRIX  OF    CO-EXECUTORS OF    EXECUTOR    OP    EXECUTOR OF 

EXECUTOR  DE  SON  TORT. 

An  infant,  as  it  has  been  already  stated(«),  is  now,  by  the  stat.  38 
Geo.  3.  c.  87,  incapable  of  the  functions  of  an  executor,  till  he  shall 
have  attained  his  full  age  of  twenty-one  years.  Nor  before  the  passing 
of  this  statute  was  an  infant  competent  to  act,  till  he  had  arrived  at 
the  age  of  seventeen(5);  but  at  that  age  he  had  a  right  to  assume  the 
executorship.  He  had  authority  to  sell  the  testator's  etfects,  to  pay 
and  receive  debts,  to  assent  to  and  pay  legacies,  and,  generally,  to 
discharge  the  duties  which  belong  to  the  representatives  of  the  de- 
ceased(c).  Yet,  if  an  infant  executor,  after  the  age  of  seventeen,  and 
before  the  age  of  twenty-one  years,  released  a  debt  due  to  the  testator 
without  actually  receiving  it,  such  a  release  was  held  to  be  void:  or  if 
he  received  only  a  part  of  it,  it  was  void  [357]  for  the  remainder; 
for  otherwise  he  would  have  been  divested  of  that  privilege  which 
the  law  allows  to  all  infants,  of  rescinding  their  acts  when  they  are 
manifestly  to  their  disadvantage.  Nor  could  a  proceeding,  preju- 
dicial both  to  the  infant  and  to  the  estate,  be  regarded  as  pursuant  to 
his  office(c?).  On  the  same  principle  the  assent  of  such  infant  execu- 
tor to  a  legacy  did  not  bind  him,  unless  he  had  assets  for  the  payment 
of  debts(e).  Nor  had  he  a  power  of  committing  any  other  act  which 
might  involve  him  in  the  consequences  of  a  devastavit^/).  Nor, 
in  a  late  case,  would  the  Court  of  Chancery  direct  money  to  be  paid 
to  an  infant  executor,  although  he  had  attained  the  age  of  seventeen; 
but  referred  it  to  a  master  to  inquire  whether  there  were  any  debts 
or  legacies,  and  to  consider  of  a  maintenance(^). 

But  these  distinctions  it  is  now  needless  to  discuss,  the  statute 
having  altogether  disqualified  an  infant  executor  from  exercising  the 
ofl&ce  during  his  minority,  and  having  directed  administration  with 
the  will  annexed  to  be  granted  to  some  other  person  in  the  interim(A). 

(a)  Supr.  31. 101.  Russell's  case,  Moore,  146.     Knot  v. 

(6)  Off.  Ex.  214.    1  Roll.  Abr.  730.  Barlow,  Cro.  Eliz.  671.     Kniveton  v. 

Sed  vid.  Gierke  v.  Hopkins,  Cro.  Eliz.  Latham,  Cro.  Car.  490. 

254.     Manning's  case,   3  Leon.  143.  (e)  Off.  Ex.  217.  225. 

Keilw.  51.     Foxwist  v.  Tremaine,  2  (/)  Whitemore  v.  Wheld,  1  Vera. 

Saund.  212.     1  Bl.  Com.  463.  328. 

(c)  3  Bac.  Abr.  8.     Off.  Ex.215,  (;?)  Campartv.  Campart,3Bro.  Ch. 

217,  218.     Com.  Dig.  Admon.  E.  Rep.  195. 

{d)  3  Bac.  Abr.  8.     5  Co.  27.     Off.  (A)  Vid.  supr.  31.  101. 
Ex.  217,  218.     Com.  Dig.  Admon.  E. 


CHAP,  v.]  MARRIED  WOMAN  EXECUTRIX.  357 

If  A.  appoint  B.,  an  infant,  his  executor,  and  C.  executor  during 
the  minority  of  B.,  C,  though  only  a  temporary  executor,  seems, 
during  the  continuance  of  his  office,  to  be  invested  with  the  same 
[35S]  powers  as  belong  to  an  absolute  executor;  and  although  he  be 
named  in  the  will  administrator  only  for  the  benefit  of  the  infant(e). 

In  case  a  married  woman  be  executrix,  the  husband,  as  we  have 
before  seen{k),  has  a  right  to  act  in  the  administration  with  or  with- 
out her  consent.  He  is  empowered  to  reduce  into  possession,  or  to 
dispose  of  the  property  by  way  of  gift,  sale,  surrender,  or  release;  to 
receive  and  pay  debts;  to  assent  to  and  pay  legacies;  and  to  elect  for 
his  wife  to  take  as  legatee(/).  And  his  assets  are  chargeable  in 
equity  for  waste  committed  during  the  coverture(w2).  On  the  con- 
trary, such  acts,  if  performed  by  her  without  his  permission,  are  of 
no  validity(n).  If  the  husband  be  abroad,  the  Court  of  Chancery 
will  restrain  the  executrix  from  getting  in  the  assets  of  the  testator, 
and  appoint  a  receiver  for  that  purpose,  with  power  to  commence 
suits  for  the  recovery  of  debts  due  to  the  estate(o). 

And  this  doctrine  is  founded  on  the  principle,  that  as  he  is  person- 
ally responsible  for  such  acts,  the  law  makes  it  essential  to  their  va- 
lidity, that  they  should  be  performed  by  him,  or  at  least  with  his 
concurrence:  otherwise  the  misconduct  of  the  wife  in  the  executor- 
ship might  be  extremely  prejudicial  to  the  husband(  jo). 

Yet,  if  an  executrix  marry,  and  the  husband  eloine  the  goods, 
or  is  guilty  of  any  other  species  of  devastavit,  it  will  be  a  devastavit 
[359]  also  by  the  wife,  and  they  will  be  both  answerable  according- 
ly(^).  On  the  other  hand,  if  an  executrix  commit  a  devastavit,  and 
then  marry,  the  husband,  as  well  as  the  wife,  is  chargeable  for  it  du- 
ring the  coverture(r)(l).  And  where  an  executrix  marries,  and  her 
husband  and  she  admit  assets  in  answer  to  a  bill  filed  against  them, 
the  assets  become  a  debt  of  the  husband  in  respect  of  such  admission, 
and  may  be  proved  under  a  commission  of  bankruptcy  issued  against 
\iim(s). 

If  the  testator  were  indebted  to  the  husband,  or,  which  is  the  same 
thing,  to  the  wife  before  marriage,  the  husband  may  retain. 

If  the  husband  were  indebted  to  the  testator,  the  making  of  the 
wife  executrix  is  equally  a  release  of  the  debt,  as  if  she  had  been  the 

(0  Off.  Ex.  215,  216.     Com.  Dig.  (7^)  Off.    Ex.   207,   208.   225.      1 

Admon.  F.  Fonbl.  84.  86.     5  Co.  27. 

{k)  Supr.  241.  (ry)  Com.  Dig.    Admon.   D.     Cro. 

(/)  Cora.  Dig.  Admon.  D.     Off.  Ex.  Car.  510.     Dyer,  210,  in  marg.  Bey- 

207,  208.     Wankford  v.  Wankford,  1  non  v.  Collins,  2  Bro.  Ch.  Rep.  323. 

Salk.  306.  Adair  v.  Shaw,  1  Sch.  &  Lef.  257. 

(m)  Adair  V.  Shaw,  1  Sch.  and  Lef.  (r)  Com.  Dig.  Baron  &  Feme,  N. 

243.  Kingv.  Hilton,  Cro.  Car.  603.     Hey- 

(n)  3  Bac.  Abr.  9.  Keilw.  122.  Off.  ward's  case,  Moore,  761. 

Ex.  207,  208.     Vid.  Anders.  117.     1  (s)  Matter  of  M' Williams,  1  Scho. 

Roll.  Abr.  924.  &  Lef.  173. 

(0)  Taylor  v.  Allen,  2  Atk.  213. 


(1)  Knox  V.  Picket,  4  Deaaiis.  Rep.  92. 


359  OF  CO-EXECUTORS.  [bOOK  III. 

debtor;  althougli  if  an  executrix  after  the  death  of  the  testator  marry 
such  debtor,  it  will  be  a  dcv(tstavit{t). 

If  specific  legacies  are  left  to  a  husband  and  wife  jointly,  and  they 
are  named  executors,  such  legacies  shall  exclude  them  from  the  resi- 
due, for  they  are  analogous  to  a  specific  legacy  to  a  sole  executor(M). 

Co-executors,  we  may  remember,  are  regarded  in  law  as  an  indi- 
vidual person(z^;);  and,  by  consequence,  the  acts  of  any  one  of  them, 
in  respect  to  the  administration  of  the  effects,  are  deemed  to  be  the 
acts  of  all:  for  they  have  a  joint  and  entire  authority  over  the 
[360]  whole  property(ar).  Hence  a  release  of  a  debt  by  one  of 
several  executors  is  valid,  and  shall  bind  the  rest(y).(l)  So  a 
grant,  or  a  surrender  of  a  term  hy  one  executor  shall  be  equally 
available(z).  It  has  been  likewise  held,  that  if  one  confess  a  judg- 
ment, the  judgment  shall  be  against  all(a).  But,  on  the  contrary, 
where  there  were  three  executors,  one  of  whom  gave  a  warrant  of 
attorney  to  confess  judgment  against  himself  and  his  co-executors, 
pursuant  to  which  a  judgment  was  entered  against  all  the  executors 
de  bonis  testatoris  for  the  debt,  and  against  the  executor  who  gave 
the  warrant  de  bonis  propriis  for  the  costs;  it  was  set  aside,  on  the 
ground  that  executors  may  plead  different  pleas,(2)  and  that  which 
is  most  for  the  testator's  advantage  shall  be  received(6).  If  one 
executor  grant,  or  release  his  interest  in  the  testator's  estate  to  the 
other,  nothing  shall  pass,  because  each  was  possessed  of  the  whole 
before(c).  It  has  been  adjudged  also  that  if  one  of  two  executors 
appointed  by  the  obligee  deliver  the  bond  to  a  stranger  in  satisfac- 
tion of  a  debt  due  from  himself,  and  die;  although  the  debt  as  a 
chose  in  action  could  not  pass  by  the  assignment,  yet  by  this  deliv- 
ery the  party  had  such  an  interest  in  the  instrument,  that  he  might 
justify  the  detention  of  it  as  against  the  surviving  executor((/);  but 
the  law  of  this  case  seems  very  dubious,  inasmuch  as  the  debt,  not 
being  assignable,  could  not  pass  by  the  delivery  of  the  obligation(e). 

[361]  One  executor  shall  not  be  allowed  to  retain  his  own  debt, 
in  prejudice  to  that  of  his  co-executor  in  equal  degree,  but  both  shall 
be  discharged  in  proportion(/). 

(/■)  OfF.  Ex.  207.  (i)  Elwellv.  Quash,  Stra.  20.   Vid. 

(ji)  1  P.  Wms.  550,  note  1,  ad  fin.  Baldwin   v.    Church,    10   Mod.    323. 

Willis  V.  Brady,  Barnard.  64.  Hudson  v.  Hudson,  1  Atk.  460. 

(w)  Vid.  supr.  37.  243.  (c)  Godolph.  134.     3  Bac.  Abr.  31. 

\x)  3  Bac.  Abr.  30.     Off.  Ex.  95.  {d)  2  Roll.  Abr.  46.     Dyer,  23  b. 

1  Roll.  Abr.  924.     Com.  Dig.  Adraon.  Kelsock  v.  Nicholson,  Cro.  Eliz.  478. 

B  12.  S.  C.  496. 

(v)  Dyer,  23  b.     Jacomb.  v.  Har-  (e)  3  Bac.  Abr.  in  note, 

wood,  2  Ves.  267.  (/)  2  Fonbl.  407,  note  (1).    11  Vin. 

(2)  Ibid.  23  b.  Abr.  72.     3  Bl.  Com.  19. 

(a)  Ibid.  23  b,  in  note. 


(1)  3  Johns.  Rep.  70.     11  Johns.  Rep.  21.    Murray  v.  Blatchford,  1  Wend.  Rep.  58.1. 

(2)  Heisler  v.  Knipe,  1  P.  A.  Browne's  Rep.  319. 


CHAP,  v.]  ,  OF  CO-EXECUTORS.  361 

An  assent  to  a  legacy  by  one  of  several  executors  is  sufficient(^). 
And  if  there  be  a  devise  to  all  the  executors  generally,  one  of  them 
may  assent  for  his  part(A). 

Co-executors,  as  well  as  a  sole  executor,  shall  be  excluded  from 
the  residue,  either  in  case  the  testator  shall  have  expressly  described 
them  as  mere  trustees,  or,  according  to  the  fair  construction  of  the 
will,  appears  to  have  so  considered  them;  or  in  case  he  has  made  an 
imperfect  disposition  of  the  residue,  as  where  he  has  inserted  a  re- 
siduary clause  without  proceeding  to  specify  the  residuary  legatee, 
or  where  he  hath  bequeathed  the  surplus  to  a  party,  who  died  before 
him(^}. 

If  a  legacy  be  given  to  one  executor,  expressly  for  his  care  and 
trouble,  and  no  legacy  be  given  to  his  co-executor,  they  shall  both 
be  barred  of  the  residue(A').  For  one  being  a  trustee,  the  other 
must  be  a  trustee  also.  Yet  if  there  be  two  or  more  executors,  a 
legacy  to  one,  expressed  to  be  a  testimony  of  regard,  and  immediately 
following  a  particular  trust  imposed  upon  him  by  the  will,  shall  not 
exclude  them  from  the  residue(/),  nor  shall  even  a  simple  legacy 
to  one  of  them  have  that  effect;  for  the  testator  may  have  intended 
a  preference  to  him  to  that  extent(m).  So,  where  several  execu- 
[362]  tors  have  unequal  legacies,  whether  pecuniary,  or  specific, 
they  shall  nevertheless  be  entitled  to  the  surplus(n).(l)  But  where 
equal  pe«uniary  legacies  are  given  to  co-executors,  a  trust  shall  re- 
sult for  the  next  of  kin(o).  The  ai-guments  which  have  been  urged 
in  opposition  to  this  rule,  and  to  show  that  the  giving  of  equal  pe- 
cuniary legacies  to  several  executors,  is  not  absolutely  inconsistent 
with  an  intention  that  they  should  take  the  surplus,  are  that  such 
gift  would  secure  to  them  a  proportion  of  their  legacies  in  the  event 
of  a  deficiency  of  assets,  which  applies  equally  to  the  case  of  a  sole 
executor;  and  that  they  would  take  the  legacies  severally,  whereas 
the  residue  would  belong  to  them  jointly:  yet  the  rule  has  long 
prevailed  as  above  stated(^).  No  case,  however,  occurs  in  the 
books,  in  which  distinct  specific  legacies  of  equal  value  to  several 
executors  have  excluded  them  from  the  residue.  And  the  argu- 
ment, which  supports  the  rule  as  to  pecuniary,  by  no  means  applies 

{g)  Com.  Dig.  Admon.  C.  8.     Off.  Young,  2  Ves.  91.     Wilson  v.  Ivat, 

Ex.225.  ib.  166,  167.     2  Fonbl.  133,  in  note. 

(A)  1  Roll.  Abr.  618.  Buffar  v.  Bradford,  2  Atk.  220. 

(0  1  P.  Wms.     Petit  V.  Smith,  7  («)  1  P.  Wms.  550,  note  1.     Bras- 

&  550,  note  1.     2  Fonbl.  133,  in  note,  bridge  v.  Woodroffe,  2  Atk.  69.     Bow- 

(^)  2  Fonbl.  133,  in  note.     White  v.  ker  v.  Hunter,  1  Bro.  Ch.  Rep.  328. 

Evans,  4  Ves.  jun.  21.  2  Fonbl.  134,  in  note.     Blinkhoru  v. 

(/)  Griffiths  V.  Hamilton,  12  Ves.  Feast,  2  Ves.  27. 

jun.  298.  (o)  Petit  v.  Smith,  1  P.  Wms.  7. 

(m)  1  P.  Wms.  550,  notel.   Coles-  Carey  v.  Goodinge,  3  Bro.  Ch.  Rep. 

worth  V.  Brangwin,  Prec.  Chan.  323.  110. 

4  Bro.  P.  C.  1.     Bishop  of  Cloyne  v.  (/?)  1  P.  Wms.  550,  note  1 . 


(1)  See  ante,  page  .352,  note  (1). 


362  OF  CO-EXECUTORS.  [bOOK  III. 

with  equal  force  to  specific  legacies,  since  it  is  very  probable  that 
a  testator  may  wish  to  distribute  specific  quantities  of  stock,  or  par- 
ticular debts,  among  his  executors  in  some  particular  manner,  although 
equal  in  point  of  value,  and  consistently  with  an  intention  that  they 
should  take  the  surplus(5'). 

Nor  does  the  case  just  mentioned(r),  of  specific  legacies  bequeathed 
[36.3]  jointly  to  a  husband  and  wife,  who  are  named  executors,  bear 
upon  the  point;  for,  as  it  was  before  observed,  it  is  similar  to  that  of 
a  specific  legacy  to  a  sole  executor(j'). 

Co-executors  taking  a  residue  in  that  character  take  as  joint  ten- 
ants; therefore,  if  one  of  them  die  before  severance,  his  share  shall 
survive(/). 

The  power  of  an  executor  is  not  determined  by  the  death  of  his 
co-executor,  but  survives  to  him;  and,  therefore,  it  is  held  he  may 
assent  to  a  legacy(M).  Whether  a  power  of  selling  land,  of  which 
I  shall  presently  speak,  given  to  co-executors,  is  in  strictness  of  law 
capable  of  being  exercised  by  the  survivor,  is  a  point  on  which  there 
are  opposite  authorities(i^).(l)  Nor  is  it  now  material  to  resolve 
it,  as  such  power,  although  extinct  at  law,  would  certainly  be  en- 
forced in  equity,  which  considers  the  application  directed  by  the 
testator  of  the  money  arising  from  the  sale  to  be  the  substantial  part 
of  the  devise,  and  the  persons  named  to  execute  the  power  of  selling 
to  be  mere  trustees,  in  conformity  to  the  rule  that  a  trust  shall  never 
fail  of  execution  for  want  of  a  trustee;  and  that  if  there  be  one  want- 
ing, the  court  will  execute  the  office.     The  relief  is  administered  by 

(?)  Ibid.  2  Fonbl.  134,  in  note.  ders  v.  Clarke,  3  Atk.  509.     S.  C.  1 

(r)  Supr.  359.  Ves.  9. 

(*)  1  P.  Wms  550,  note  1.  ad  fin.  (w)  Harg.  Co.  Litt.  113,  and  note  2. 

Willis  V.  Brady,  Barnard.  64,  1  Dy.  177.    Moore,  61.    Perk.  S.  550. 

(0  Frewin  v.  Rolfs,  2  Bro.  Ch.  Rep.  Bro.   Abr.   Devise,   50.      Howell   v. 

220.     Griffith  v.  Hamilton,    12  Ves.  Barnes,  Cro.  Car.  382.   Barnes's  case, 

jun.  298.  W.  Jones,  352. 

(u)  Com.  Dig.  Admon.  B.  12.   Flan- 


(1)  Where  the  authority  to  sell  is  given  to  executors  virtute  officii,  a  surviving  executor 
may  sell;  and  an  acting  executor  has  the  same  power,  upon  the  renunciation  of  the  other 
executors,  on  their  declining  to  act.  Lessee  of  Zebach  v.  Smith,  3  Binn.  69.  Jackson 
y.  Ferris,  15  Johns.  Rep.  348.  JVelso7i  \.  Carrington,  i  M.un{.  332.  Digges^  Lessee  \. 
Jarman,  4  Harr.  &  M'Hen.  485.  In  Pennsylvania,  by  the  provisions  of  the  act  of  12tli 
March,  1800  (Purd.  Dig.  277;  4  Dall.  Laws,  593;  3  Sm.  Laws,  433),  express  power  is 
given  to  a  surviving  executor  or  surviving  executors,  an  acting  executor  or  acting  execu- 
tors, where  others  renounce  or  are  dismissed  from  the  trust,  to  administrators  with  the 
will  annexed,  and  administrators  de  bonis  non,  to  execute  all  powers  and  authorities  to 
sell  lands  contained  in  any  last  will  and  testament,  as  fully  and  amply  as  if  all  the  execu- 
tors named  had  joined  therein. 

Where  lands  are  devised  to  be  sold,  but  the  testator  does  not  direct  his  executors  to 
sell  them,  they  have  the  power  by  necessary  implication  [Davoue  v.  Fanning,  2  Johns. 
Cha.  Rep.  252),  and  such  power  may  be  executed  by  a  surviving  executor.  Lloyd's  Lessee 
v.  Taylor,  2  Dall.  Rep.  223.  See,  however,  Drayton  \.  Drayton,  2  Desaus.  Rep.  250,  n. 
Shoolbred  v.  Drayton,  2  Desaus.  Rep.  246. 


CHAP,  v.]       OF  AN  EXECUTOR  DE  SON  TORT.  363 

regarding  the  land,  in  whatever  person  vested,  as  bound  by  [364]  the 
trust,  and  compelling  the  heir,  or  other  person  having  the  legal  estate, 
to  perform  it(j:"). 

As  a  mediate  or  remote  executor  has  the  same  interest  in  the  ef- 
fects of  the  original  testator  as  the  immediate  executor,  he  is  invested 
with  the  same  authority  and  privileges,  and  is  bound  to  administer 
such  effects  in  the  same  roanner(y).  But  in  cases  of  special  trust 
confided  to  the  executor  without  the  ordinary  limits  of  his  duty;  as 
to  sell  land,  and  the  like;  if  it  be  not  performed  by  the  original  ex- 
ecutor, some  books  allege  that  no  successive  executor,  as  such,  shall 
have  authority  for  that  purpose(2r).  On  the  other  hand,  it  has  been 
held  that  such  a  power  of  selling  given  to  an  executor  is  transmissi- 
ble in  the  way  of  succession  in  infinitum,  till  executed(a).  But 
this  point  is  of  no  more  importance  than  that  just  mentioned,  and 
for  the  same  reason. 

If  an  executor  who  has  not  proved,  assist  his  co-executor  who  has, 
in  writing  letters  to  collect  debts,  or  by  writing  directly  to  a  debtor 
of  the  testator  requiring  payment,  it  will  not  be  considered  by  the 
court  as  acting,  so  as  to  charge  him(6). 

In  respect  to  an  executor  de  son  tort,  he  may  perform  a  variety 
of  acts,  which'shall  be  as  binding  as  those  of  a  rightful  executor(c). 
As  against  creditors,  he  is  justified  in  paying  the  debts  of  the  de- 
ceased{d ),  and,  indeed,  may  be  compelled  to  pay  them  so  far  as  assets 
[365]  come  to  his  hands(e);  and  to  an  action  brought  against  him  by 
a  creditor,  he  may  plead  jjle?!^  administravit{f). 

In  case  the  rightful  representative  shall  think  fit  to  pursue  his 
legal  remedy  against  such  an  intruder,  he  has  no  defence;  as,  if  it  be 
by  action  of  trover  for  the  goods  of  the  testator,  the  executor  de  son 
tort  cannot  plead  payment  of  debts  to  the  value,  or  that  he  hath 
given  the  goods  in  satisfaction  of  the  debts;  for  he  had  no  right  to 
interfere. 

Yet,  on  the  general  issue  pleaded,  he  may  give  in  evidence  such 
payments,  and  they  shall  be  deducted  from  the  damages(^);  or,  if 
they  amount  to  the  full  value,  the  plaintiff  shall  be  nonsuited(A). 
But  it  may  be  doubted,  whether  in  such  action  the  defendant  can 
give  in  evidence  payment  of  debts  to  the  value  of  such  goods  as  are 
still  in  his  custody,  or  only  of  those  which  he  has  sold(z).  If  the 
action  be  trespass  instead  of  trover,  payment  of  debts  to  the  value 

ix')  HariT.  Co.  Litt.  113,  note  2.  (f)  2  Bl.  Com.  507.     Dyer,  166  b, 

(y)  Com.  Dig.  Admon.  G.   Off.  Ex.  (/)  3  Bac.  Abr.  25.   5  Co.  30.   Off. 

257,  258.     Shep.  Touchs.  464.  Ex.  181.   Whitehall  v.  Squire,  Garth. 

(z)  Off.  Ex.  258,  259.  104.     Sed.  76. 

(a)   Harg.  Co.   Litt.  113,   note  2.  {g)  Com.  Dig.  Admon.  C.  3.    3 

Keilw.  44.  2Brownl.  194.  Dyer,  210.  Bac.  Abr.  25,      Carth.   104.      Skm. 

371  b  274,  pi.  2.     Off.  Ex.  182.     Anon.  1 

(h\On  V.  Newton,  2  Cox's  Rep.  Ventr.  349,  350.     2  Bl.  Com.  508. 

274  (A)  L.  of  Ni.  Pri.  48. 

(c)  3  Bac.  Abr.  25.     Off.  Ex.  180.  (t)  Ibid.  Parker  v.  Kett,  12  Mod. 

(d)  Off.  Ex.  181,  182.  471. 


365  OF  AN  EXECUTOR  DE  SON  TORT.  [bOOK  III. 

will  go  only  in  mitigation  of  damages(A"),  and  the  plaintiff  will  be 
entitled  to  a  verdict. 

The  ground  of  the  distinction  seems  to  be  this:  in  trover,  his  pos- 
session is  admitted  to  have  been  lawful,  and  the  subsequent  distribu- 
tion negatives  the  conversion;  but  in  trespass,  the  unlawful  taking 
[366]  is  the  subject  matter  of  complaint,  to  which  the  distribution  is 
not  an  answer. 

Nor  in  any  case  shall  such  payments  be  allowed  to  nonsuit  the 
plaintiff,  or  to  lessen  the  damages,  if  there  be  a  failure  of  assets,  and 
the  lawful  executor  would  by  these  means  be  divested  of  his  right 
of  preferring  one  creditor  to  another  of  equal  rank,  or  giving  himself 
the  same  preference(/). 

Nor  shall  an  executor  de  son  tort  derive  any  advantage  from  the 
wrongful  character  which  he  has  assumed.  He  is  not  entitled  to 
bring  an  action  in  right  of  the  deceased(7re.);(l)  nor  is  he  empow- 
ered to  retain  in  satisfaction  of  his  own  debt:  for  such  a  privilege 
would  enable  him  to  profit  by  his  own  tortious  acts,  and  would  tend 
to  encourage  a  competition  of  creditors,  who  should  first  take  pos- 
session of  the  testator's  effects  without  any  legal  authority(n). 

There  is,  indeed,  one  exception  to  this  rule;  a  party  who  by  stat. 
43  Eliz.  c.  S(o)  becomes  an  executor  de  S07i  tort,  in  consequence  of 
a  gift  to  him  of  the  intestate's  effects  by  an  administrator,  who  has 
obtained  the  grant  fraudulently,  is  by  the  express  provision  of  that 
act  allowed  to  retain.  But  in  all  other  instances,  an  executor  de 
[367]  son  tort  is  excluded  from  this  advantage.  Nor  shall  he  retain 
for  his  own  debt,  even  against  a  creditor  of  inferior  degree(/;). 
Nor,  after  an  action  brought  against  him  by  a  creditor,  can  he  avail 
himself  of  a  delivery  over  of  the  effects  to  the  rightful  administrator, 
though  before  the  filing  of  the  plea;  nor  of  the  assent  of  the  admin- 
istrator to  his  retainer  of  his  debt.  Nor  is  the  case  varied,  although 
in  point  of  fact  no  administration  were  granted  at  the  time  of  the 
commencement  of  such  suit,  and  the  defendant  without  delay  relin- 
quished the  property  to  the  grantee(9'). 

If  the  executor  de  son  tort  deliver  the  effect  to  the  administrator 
before  such  action  brought,  that  is  a  sulScient  defence,  and  he  may 
give  it  in  evidence  on  the  plea  oiplenh  administravit{r). 

The  grant  of  administration  to  such  executor  shall  legalize  his  pre- 

(A)  L.  of  Ni.  Pri.  48.  91.     Ca.  B.  Ex.  182,  183.    2  H.  Bl.  26,  in  note, 

R.  441.  and  vid.  supr.  39. 

(/)  2  Bl.  Com.  508.     Off.  Ex.  182.  (p)  3  Bac.  Abr.  25.    5  Co.  30.    Ire- 
Cm)  2  Bl.  Com.  507.     Bro.  Abr.  tit.  land  v.  Coulter,  Cro.  Eliz.  630.      1 

Admon.  8.     11  Vin.  Abr.  222.     2  An-  Roll.  Abr.  922. 

ders.  39,  pi.  25.  (q)  Curtis  v.  Vernon,  3  Term  Rep. 

(rj)   2   Bl.  Com.  511.     5  Co.  30.  587,  affirmed  in  Exch.  Chan.     2  H. 

Moore,  527.  Bl.  26. 

(o)  See  Com.  Dig.  Admon.C.  3.  Off.  (r)  Anon.  1  Salk.  313. 

(1)  iee  V.  Wright,  1  Hawk's  Rep.  151. 


CHAP,  v.]  OF  AN  EXECUTOR  DE  SON  TORT.  367 

vious  acts(*).(l)  Thus,  where  he  takes  possession  of  the  testator's 
goods,  and  sells  them,  and  afterwards  is  appointed  administrator,  such 
subsequent  grant  shall  make  the  sale  effectual(^).  So  if  A.  be  or- 
dered by  B.  to  sell  the  effects  of  the  intestate,  and  B,  afterwards  takes 
out  administration;  A.,  to  an  action  brought  against  him  by  a  credi- 
tor, may  plead  jo/en^  administravit,  and  shall  be  discharged  on  this 
[368]  evidence(w).  An  administration,  also,  committed  to  an  ex- 
ecutor de  son  tort,  and  although  committed  to  him  pendente  lite, 
shall  warrant  his  retainer  of  his  own  debt,  on  the  same  principle  of 
necessity  on  which  such  right  of  executors  is  in  general  founded, 
namely,  to  avoid  the  inconvenience  and  absurdity  of  a  party's  insti- 
tuting a  suit  against  himself(a;).  So,  where  A.  entitled  to  adminis- 
tration was  opposed  in  the  ecclesiastical  court,  and,  pendente  lite, 
being  sued  as  executor  in  the  Court  of  King's  Bench,  pleaded  a 
retainer  for  a  debt  due  to  himself,  to  which  the  plaintiff  replied,  that 
the  defendant  was  executor  de  son  tort;  the  defendant  rejoined,  that 
letters  of  administration  had  been  granted  to  him.  puis  darrein  con- 
tinuance; on  demurrer  the  plea  was  allowed,  and  judgment  given 
for  the  defendant(y).  But  if  A.  dispose  of  an  intestate's  goods  to  B. 
for  the  payment  of  the  funeral,  and  afterwards  take  administration, 
it  has  been  held,  he  shall  not  have  an  action  of  trover  against  B.  for 
the  goods(z). 

(5)  Com.  Dig.  Admon.  C.  3.     Ken-  Ventr.  180.    Sty.  337. 

rick  V.  Burgess,  Moore,  126.     Curtis  (y)  3Bac.  Abr.  26,innote.  Vaughan 

V.  Vernon,  3  Term  Rep.  590.     2  H.  v.  Browne,  2  Stra.  1106.     AndrJ  328. 

Bl.  25.  S.  C.  3  Term  Rep.  588.      S.  C.  cited 

(0  Moore,  126.  L.  of  Ni.  Pri.  143,  144. 

(u)  Whytmore  v.  Porter,  Cro.  Car.  (z)  P.  per  two  just.     Holt,  C.  J. 

88.  contr.    Whitehall  v.  Squire,  Salk.  295. 

(x)  2  H.  11.  25.  argdo.     Com.  Dig.  S.  C.  Skin.  274.     Vid.  S.  C.  Carth. 

Admon.  C.  3.     Pyne  v.  Woolland,  2  104,  and  supr.  244. 

(1)  See  ante  243,  note  (2). 


32 


369  OF  DISTRIBUTION.  [bOOK  III. 


CHAPTER  VI. 


OF    DISTRIBUTION. 

Sect.  I. 
Of  distribution  under  the  statute — and  herein  of  advancement. 

I  AM  now  to  discuss  the  power  and  duty  of  an  administrator.  His 
office,  so  far  as  it  concerns  the  collecting  of  the  effects,  the  making 
of  an  inventory,  and  the  payment  of  debts,  is  altogether  the  same  as 
that  of  an  executor.  But  as  there  is  no  will  to  direct  the  subsequent 
disposition  of  the  property,  at  this  point  they  separate,  and  must 
pursue  different  courses. 

After  the  ordinary  was  divested  of  the  power  of  administering 
an  intestate's  effects,  and  compelled,  in  the  manner  above-mention- 
ed(o),  to  delegate  such  authority  to  the  relations  of  the  deceased, 
the  spiritual  court  attempted  to  enforce  a  distribution,  and  took 
bonds  of  the  administrator  for  that  purpose;  but  such  bonds  were 
prohibited  in  the  temporal  courts,  and  declared  to  be  void  in  point 
of  law,  on  the  ground,  that  by  the  grant  of  administration  the  ec- 
[370]  clesiastical  authority  was  executed,  and  ought  to  interpose 
no  farther(6).  Thus  the  grantee  was  entitled  not  only  to  adminis- 
ter, but  also,  exclusively  to  enjoy  the  residue  of  the  intestate's  ef- 
fects(c).  For  the  purpose,  therefore,  of  aiding  the  imperfect  juris- 
diction of  the  ordinary,  and  of  preventing  any  single  hand  from 
sweeping  away  the  whole  surplus(of),  the  stat.  22  &  23  Car.  2.  c. 
10,  commonly  called  the  statute  of  distributions(e)  was  enacted.(l) 

(a)  Supr.  80,  et  seq.  Bowers   v.  Littlewood,  594.     Carter 

(6)  2  Bl.  Com.  515.     Edwards  v.  v.    Crawley,   Raym.    496.      4   Burn. 

Freeman,  2  P.  Wms.  441.     Hughes  v.  Eccl.  L.  342,  343. 
Hughes,  1  Lev.  233.  S.  C.  Cart.  125.  (e)  Made  perpetual  by  1  Jac.2.  c.  17, 

(c)  Edwards  V.  Freeman,  2  P.  Wms.  s.  5.    Vid.Rex  v.  Raines,  1  Ld.  Raym. 

448.  574. 

Id)  Petit  V.  Smith,  1  P.  Wms.  8. 


(1)  In  Pennsylvania  provision  was  made  for  the  descent  of  the  real  and  distribution 
of  the  personal  estate  of  persons  d3-ing  intestate,  previous  to  the  first  day  of  October,  1833, 
by  the  act  of  19th  April,  1794  (Purd.  Dig.  373;  3  Dall.  Laws,  521;  3  Sm.  Laws.  135), 
and  by  the  act  of  4th  April,  1797  (Purd.  382). 

On  the  first  day  of  October  1833,  the  act  of  8th  April,  1833,  "  relating  to  the  descent 
and  distribution  of  the  estates  of  intestates"  (Pamph.  Laws,  315)  went  into  operation. 
The  provisions  are  as  follows: — 


CHAP.  VI.]  OF  DISTRIBUTION.  370 

Sect.  I.  That  the  real  and  personal  estate  of  a  decedent,  whether  male  or  female,  re- 
maining after  payment  of  all  just  debts  and  legal  charges,  which  shall  not  have  been  sold 
or  disposed  of  by  will,  or  otherwise  limited  by  marriage  settlement,  shall  be  divided,  and 
enjoined  as  follows,  viz: 

Article  1.  Where  such  intestate  shall  leave  a  widow  and  issue,  the  widow  shall  be 
entitled  to  one  third  part  of  the  real  estate  for  the  term  of  her  life,  and  to  one  third  part 
of  the  personal  estate  absolutely. 

Article  2.  Where  such  intestate  shall  leave  a  widow  and  collateral  heirs,  or  other 
kindred,  but  no  issue,  the  widow  shall  be  entitled  to  one  half  part  of  the  real  estate,  includ- 
ing the  mansion-house  and  buildings  appurtenant  thereto,  for  the  term  of  her  life,  and  to 
one  half  part  of  the  personal  estate  absolutely. 

Article  3.  Where  such  intestate  shall  leave  a  husband,  he  shall  take  the  whole  per- 
sonal estate,  and  the  real  estate  shall  descend  and  pass  as  is  hereinbefore  provided,  sav- 
ing to  the  husband  his  right  as  tenant,  by  the  courtesy  which  shall  take  place,  although 
there  be  no  issue  of  the  marriage,  in  all  cases  where  the  issue,  if  any,  would  have  inhei-ited. 

Sect.  II.  That  subject  to  the  estates  and  interests  herein  before  given  to  the  widow  or 
surviving  husband,  if  any,  the  real  estate  of  such  intestate  shall  descend  to,  and  the  per- 
sonal estate  not  otherwise  herein  before  disposed  of,  shall  be  distributed  among  his  issue, 
accoi'ding  to  the  following  rules  and  order  of  succession,  viz: 

Article  1.  If  such  intestate  shall  leave  children,  but  no  other  descendant  being  the 
issue  of  a  deceased  child,  the  estate  shall  descend  to  and  be  distributed  among  such  chil- 
dren. 

Article  2.  If  such  intestate  shall  leave  grand-children,  but  no  child  or  other  descendant 
being  the  issue  of  a  deceased  grand-child,  the  estate  shall  descend  to  and  be  distributed 
among  such  grand-children. 

Article  3.  If  such  intestate  shall  leave  descendants  in  any  other  degree  of  consanguin- 
ity, however  remote  from  him,  and  all  in  the  same  degree  of  consanguinity  to  him,  the 
estate  shall  descend  to  and  be  distributed  among  such  descendants. 

Article  4.  If  such  intestate  shall  leave  descendants  in  different  degrees  of  consanguin- 
ity to  him,  the  more  remote  of  them  being  the  issue  of  a  deceased  child,  grand-child,  or 
other  descendant,  the  estate  shall  descend  to  and  be  distributed  among  tliem  as  follows, 
viz: 

A.  Each  of  the  children  of  such  intestate  shall  receive  such  share  as  such  child  would 
have  received,  if  all  the  children  of  the  intestate  who  shall  then  be  dead,  leaving  issue, 
had  been  living  at  the  death  of  the  intestate. 

B.  Each  of  the  grand-children,  if  there  shall  be  no  children,  in  like  manner  shall  re- 
ceive such  share  as  he  or  she  would  Iiave  received,  if  all  the  other  grand-children  who 
shall  then  be  dead,  leaving  issue,  had  been  living  at  the  death  of  the  intestate,  and  so  in 
like  manner  to  the  remotest  degree. 

C.  In  every  such  case,  the  issue  of  such  deceased  child,  grand-cliild  or  other  descend- 
ant, shall  take,  by  representation  of  their  parents  respectively,  such  share  only  as  would 
have  descended  to  such  parent,  if  they  had  been  living  at  the  death  of  the  intestate. 

Sect.  III.  In  default  of  issue  as  aforesaid,  and  subject  also  as  aforesaid  to  the  estates 
and  interests  herein  before  given  to  the  widow  or  surviving  liusband,  if  any,  the  real  es- 
tate shall  go  to  the  father  and  mollier  of  such  intestate,  during  their  joint  lives,  and  the 
life  of  tlie  survivor  of  them;  and  the  personal  estate  not  otherwise  herein  before  disposed 
of,  shall  be  vested  in  them  absolutely;  or  if  either  tlie  father  or  mother  be  dead  at  the 
time  of  the  death  of  the  intestate,  the  parent  siu'viving  such  intestate  siiall  enjoy  such  real 
estate  during  his  or  her  life,  and  sucli  personal  estate  absolutely. 

Sect.  IV.  In  default  of  issue  as  aforesaid,  and  sulyect  to  the  estates  and  interests 
herein  before  given  to  the  widow  or  surviving  husl)and,  father  and  mother,  of  the  intes- 
tate, if  any,  the  real  estate  shall  descend  to,  and  the  personal  estate  not  otherwise  herein 
before  disposed  of,  shall  be  distril)Uted  among  the  collateral  heirs  and  kindred  of  such 
intestate,  according  to  the  following  rules  and  order  of  succession,  viz: 

I.     If  such  intestate  shall  leave  brothers  and  sisters,  or  eiliier,  of  tlie  wiiole  l)lood,  and 


370  OF  DISTRIBUTION.  [bOOK  III. 

That  statute,  after  empowering  the  ordinary,  on  the  granting  of  ad- 
ministration, to  take  a  bond  of  the  administrator,  with  two  or  more 
sureties,  conditioned  as  I  have  already  stated,  further  authorizes  him 
to  proceed,  and  call  such  administrator  to  account  touching  the  goods 

no  nephew  or  niece  being  tlie  issue  of  a  deceased  brother  or  sister  of  the  whole  blood,  the 
real  estjite  shall  descend  to  and  vest  in  such  brothers  and  sisters. 

IT.  If  such  intestate  shall  leave  neitlicr  brother  nor  sister  of  the  whole  blood,  but 
nephews  or  nieces  beii)g  the  children  of  such  deceased  brother  or  sister,  the  real  estate 
shall  descend  to  and  vest  in  such  nephews  and  nieces. 

III.  If  such  intestate  sliall  leave  brothers  or  sisters  of  the  whole  blood,  and  also  ne- 
phews or  nieces  being  the  children  of  any  such  deceased  brother  or  sister,  the  real  estate 
shall  descend  to  and  vest  in  such  brothers  and  sisters  and  nephews  and  nieces,  as  follows, 
viz:  Every  such  brollier  and  sister  shall  receive  such  share  as  he  or  she  would  have  re- 
ceived, if  all  the  brothers  and  sisters  who  shall  then  be  dead,  leaving  children,  had  been 
living  at  the  death  of  the  intestate,  and  such  nephews  and  tiieces,  shall  take  by  representa- 
tion of  their  parents  respectively,  such  share  only  as  would  have  descended  to  such  pa- 
rents if  they  had  been  living,  at  the  deatii  of  the  intestate. 

IV.  If  such  intestate  shall  leave  neither  brother  nor  sister  of  the  whole  blood,  nor  any 
nephew  or  niece,  being  the  child  of  such  deceased  brotlier  or  sister,  the  real  estate  shall 
descend  to  and  vest  in  the  next  of  kin  of  such  intestate,  being  the  descendants  of  his  bro- 
thers and  sisters  of  the  whole  blood. 

V.  The  personal  estate  of  such  intestate  not  otherwise  herein  before  disposed  of,  shall 
in  the  several  cases  mentioned  in  this  section,  be  distributed  among  the  brothers  and  sis- 
ters of  the  intestate,  and  their  issue,  in  like  manner  in  each  of  the  said  cases  as  is  provided 
for  the  descent  and  division  of  the  real  estate  of  the  intestate,  but  without  any  distinction 
of  blood.       ' 

Sect.  V.  In  default  of  issue,  and  brothers  and  sisters  of  the  whole  blood  and  their 
descendants  as  aforesaid,  and  subject  to  the  estates  and  interests  herein  before  given  to  the 
widow  or  surviving  husband,  if  any,  the  real  estate  shall  go  to  and  be  vested  in  the  father 
or  mother  of  the  iiitestiite,  or  if  both  be  living  at  the  time  of  his  death,  in  the  father  and 
mother  for  such  estate  as  the  said  intestate  had  therein. 

Sect.  VI.  In  default  of  issue  and  brothers  and  sisters  of  the  whole  blood  and  their 
descendants,  and  also  of  fatlier  and  mother,  competent  by  this  act  to  take  an  estate  of 
inheritance  therein,  the  real  estate  of  such  intestate,  subject  to  the  life  estates  herein  be- 
fore given,  if  any,  shall  descend  to,  and  be  vested  in  the  brothers  and  sisters  of  the  half 
blood  of  the  intestate  and  their  issue,  in  like  manner  respectively  as  is  hereinbefore  pro- 
vided for  the  cases  of  brothers  and  sisters  of  the  whole  blood  and  their  issue. 

Sect.  VII.  In  default  of  all  persons  herein  before  described,  the  real  and  personal  estate 
of  the  intestate  shall  descend  to  and  be  distributed  among  the  next  of  kin  to  such  intestate. 

Sect.  VIII.  Provided,  That  there  shall  be  no  representation  admitted  amongst  collate- 
rals after  brothers'  and  sisters'  children. 

Sect.  IX.  Provided  also.  That  no  person  who  is  not  of  the  blood  of  the  ancestors  or 
other  relations  from  whom  any  real  estate  descended,  or  by  whom  it  was  given  or  devised 
to  the  intestate,  shall  in  any  of  the  cases  before  mentioned,  take  any  estate  of  inheritance 
therein;  but  such  real  estate,  subject  to  sucli  life  estates  as  may  be  in  existence  hy  virtue 
of  this  act,  shall  pass  to  and  vest  in  such  otjier  persons  as  would  be  entitled  by  this  act,  if 
the  persons  not  of  the  blood  of  such  ancestor  or  other  relation  had  never  existed,  or  were 
dead  at  the  decease  of  the  intestate. 

Sect.  X.  In  default  of  known  heirs  or  kindred  competent  as  aforesaid,  the  real  estate 
of  such  intestate  shall  be  vested  in  his  widow,  or  if  such  intestate  were  a  married  woman, 
in  her  surviving  husband,  for  such  estate  as  the  intestate  had  therein,  and  in  such  case  the 
widow  shall  be  entitled  to  the  whole  of  the  personal  estate  absolutely. 

Sect.  XI.     Jlnd  -whereas  it  is  the  true  intent  and  meaning  of  this  act,  that  the  heir  at 


CHAP.  VI.]  OF  DISTRIBUTION.  370 

of  the  intestate;  and  on  hearing,  and  on  due  consideration  thereof,  to 
make  equal  and  just  distribution  of  what  remains  clear  after  all  debts, 
funeral,  and  just  expenses  of  every  sort  first  allowed  and  deducted, 
among  the  wife  and  children,  or  children's  children,  if  any  such  be, 

common  law  shall  not  take  in  any  case  to  the  exclusion  of  other  heirs  and  kindred  stand- 
ing in  the  same  degree  of  consanguinity  with  him  to  the  intestate,  it  is  hereby  declared 
that  in  every  case  which  may  arise,  not  expressly  provided  for  by  this  act,  the  real  as  well 
as  the  personal  estate  of  an  intestate  shall  pass  to,  and  be  enjoyed  by,  the  next  of  kin 
of  such  intestate,  without  regard  to  the  ancestor  or  otlier  relation  from  whom  such  estate 
may  have  come. 

Sect.  XII.  In  default  of  all  such  known  heirs,  or  kindred,  widow  or  surviving  hus- 
band as  aforesaid,  the  real  and  personal  estate  of  such  intestate  shall  go  to  and  be  vested 
in  the   commonwealth  by  esclieat. 

Sect.  XIII.  Descendants  and  relatives  of  an  intestate,  begotten  before  his  death  and 
born  thereafter,  s^all  in  all  cases  inJierit  and  take  in  like  manner  as  if  they  had  been 
born  in  the  lifetime  of  such  intestate. 

Sect.  XIV.  Wherever,  by  the  provisions  of  this  act,  it  is  directed  that  real  or  personal 
estate  shall  descend  to,  or  be  distributed  among  several  persons,  whether  lineal  or  collat- 
eral heirs  or  kindred,  standing  in  the  same  degree  of  consanguinity  to  the  intestate,  if  there 
shall  be  only  one  of  such  degree,  he  shall  take  the  whole  of  such  estate,  and  if  there  be 
more  than  one,  they  shall  take  in  equal  shares,  and  if  real  estate,  shall  hold  the  same  as 
tenants  in  common. 

Sect.  XV.  The  shares  of  the  estate  directed  by  this  act  to  be  allotted  to  the  widow, 
shall  be  in  lieu  and  full  satisfaction  of  her  dower  at  common  law. 

Sect.  XVI.  If  any  child  of  an  intestate  shall  have  any  estate  by  settlement  of  such  in- 
testate, or  shall  have  been  advanced  by  him  in  his  lifetime,  either  in  real  or  personal  es- 
tate, to  an  amount  or  value  equal  to  the  share  which  shall  be  allotted  to  each  of  the  other 
children  of  such  intestate,  such  child  shall  have  no  share  of  the  real  or  personal  estate  of 
such  intestate,  and  if  such  settlement  or  advancement  be  to  an  amount  or  value  less  than 
the  share  to  which  he  would  otherwise  be  entitled,  if  no  such  advancement  had  been  made, 
then  so  much  only  of  the  real  and  personal  estate  of  such  intestate  shall  be  allotted  to 
such  child,  as  shall  make  the  estate  of  all  the  said  children  to  be  equal  as  near  as  can  be 
estimated. 

Sect.  XVII.  The  provisions  of  this  act  relative  to  the  descent  and  distribution  of  real 
and  personal  estate  among  the  descendants  and  collateral  relations  of  intestates,  shall  be 
construed  to  mean  such  persons  only  as  may  have  been  born  in  lawful  wedlock. 

Sect.  XVIII.  The  residue  of  the  proceeds  of  the  sale  of  any  real  estate  of  an  intestate 
made  by  authority  of  law  for  the  payment  of  debts,  shall  vest  in  the  persons  entitled  by 
this  act  to  such  real  estate  in  such  proportions,  and  for  the  like  interests  respectively  as 
they  may  have  had  in  such  real  estate. 

Sect.  XIX.  All  such  of  the  intestate's  relations  and  persons  concerned,  who  shall  not 
lay  legal  claim  to  their  respective  shares,  within  seven  years  after  tlie  decease  of  the  in- 
testate, shall  be  debarred  from  the  same  forever:  Provided,  That  if  any  such  relation 
or  person  shall,  at  the  time  of  the  decease  of  the  intestate,  be  within  the  age  of  twenty-one 
years,  or  a  married  woman,  he  or  she  sliall  be  entitled  to  receive  and  recover  the  same, 
if  he  or  she  shall  lay  legal  claim  thereto,  within  seven  years  after  coming  to  full  age  or 
discoverture. 

Sect.  XX.  Nothing  in  this  act  contained  relative  to  a  distribution  of  personal  estate 
among  kindred,  shall  be  construed  to  extend  to  the  personal  estate  of  an  intestate,  whose 
domicil  at  the  time  of  his  death  was  out  of  this  commonwealth. 

Sect.  XXI.  This  act  sliall  take  effeet  from  and  after  the  first  day  of  October  next,  and 
so  much  of  any  act  of  Assembly  as  is  hereby  altered  oi-  suj)plied,  is  repealed  from  and 
after  said  day,  except  so  far  as  may  be  necessary  to  com])lete  the  settlement  and  disposi- 
tion of  the  estate  of  any  person  who  may  have  died  before  that  time. 


371  OF    DISTRIBUTION.  [bOOK    III. 

or  otherwise  to  the  next  of  kindred  to  the  deceased,  in  equal  degree, 
or  legally  representing  their  stocks,  pro  siio  cuiqiie  Jvre,  according 
to  the  laws  in  such  cases,  and  the  rules  and  limitation  thereafter  set 
down;  and  the  same  distrilnitions  to  decree  and  settle,  and  to  compel 
such  administrator  to  ohserve  and  pay  the  same  by  the  due  course  of 
the  ecclesiastical  laws.  The  statute  then  proceeds  to  prescrilje  the 
distribution  of  such  surplusage  [371]  in  manner  following;  that  is  to 
say,  one  third  part  thereof  to  the  wife  of  the  intestate,  and  all  the 
residue  by  equal  portions  among  his  children,  and  such  persons  as 
legally  represent  such  children,  in  case  any  of  them  be  then  dead, 
other  than  such  child  or  children,  not  being  heir  at  law,  as  shall  have 
any  estate  by  the  settlement  from  tlie  intestate,  or  sliall  be  advanced 
by  him  in  his  lifetime  by  portion,  equal  to  the  share  which  shall  by 
such  distribution  be  allotted  to  the  other  children,  to  whom  such  dis- 
tribution is  to  be  made;  and  in  case  any  child,  other  than  the  heir  at 
law,  who  shall  have  any  estate  by  settlement  from  the  intestate,  or 
shall  be  advanced  by  him  in  his  lifetime  by  portion,  not  equal  to  the 
share  which  will  be  due  to  the  other  children  by  the  distribution, 
then  so  much  of  the  surplusage  shall  be  distributed  to  such  child  as 
shall  have  any  land  by  settlement  from  the  intestate,  or  was  advanced 
in  the  lifetime  of  the  intestate,  as  shall  make  the  estate  of  all  the 
children  to  be  equal,  as  near  as  can  be  estimated;  but  the  heir  at 
law,  notwithstanding  any  land  that  he  shall  have  by  descent  or  oth- 
erwise from  the  intestate,  is  to  have  an  equal  part  in  the  distribution 
with  the  rest  of  the  children,  without  any  consideration  of  the  value 
of  such  land. 

It  then  directs,  that  in  case  there  be  no  children,  nor  any  legal 
representatives  of  them,  one  moiety  of  the  estate  shall  be  allotted  to 
the  wife  of  the  intestate,  and  the  residue  of  the  same  shall  be  distrib- 
uted equally  among  every  of  his  next  of  kindred  who  are  in  equal 
degree,  and  those  who  legally  represent  them. 

[372]  It  also  provides,  that  no  representations  shall  be  admitted 
among  collaterals  after  brothers'  and  sisters'  children;  and  in  case 
there  be  no  wife,  then  that  all  the  estate  shall  be  distributed  equally 
among  the  children;  and  in  case  there  be  no  child,  then  among  the 
next  in  kindred  to  the  intestate  in  equal  degree,  and  their  legal  re- 
presentatives as  aforesaid,  and  in  no  other  manner. 

And  it  further  directs,  for  the  benefit  of  creditors,  that  no  such 
distribution  of  the  goods  of  the  intestate  shall  be  made,  till  after  the 
expiration  of  one  year  from  his  death  ;  and  that  every  one  to  whom 
any  distribution  and  share  shall  be  allotted,  shall  give  bond,  with 
"sufficient  sureties,  in  the  spiritual  court,  that  if  any  debt,  truly  owing 
by  the  intestate,  shall  afterwards  be  sued  for  and  recovered,  or  oth- 
erwise duly  made  to  appear,  that  then,  and  in  every  such  case,  he 
shall  refund,  and  pay  back  to  the  administrator,  his  rateable  part  of 
that  debt  and  of  the  costs  of  suit,  and  charges  of  the  administrator  by 
reason  of  such  debt,  out  of  the  part  and  share  so  allotted  to  him, 
thereby  to  enable  the  administrator  to  pay  and  satisfy  the  debt  so 
discovered  after  the  distribution  made. 


CHAP,  VI.]  OP    DISTRIBUTION.  372 

The  statute  also  contains  a  proviso,  that  in  all  cases  where  the  or- 
dinary hath  used  heretofore  to  grant  administration  cum  testamento 
annexo,  he  shall  continue  so  to  do  :  and  the  will  of  the  deceased  in 
such  testament  expressed,  shall  be  performed  and  observed  in  such 
manner  as  before  the  passing  of  the  act. 

[373]  It  also  expressly  excepts  and  reserves  the  customs  of  the 
city  of  London,  of  the  province  of  York,  and  of  other  places  having 
peculiar  customs  of  distributing  an  intestate's  effects. 

Doubts  having  arisen  whether  the  husband's  right  to  administra- 
tion to  his  wife  was  not  superseded  by  force  of  this  statute,  and  whe- 
ther he  was  not  thereby  bound  to  distribute  her  personal  estate  among 
her  next  of  kin  (/);  by  the  stat.  29  Car.  2.  c.  3,  s.  25,  it  is  provi- 
ded, that  the  above  act  shall  not  extend  to  estates  of  feme  coverts 
who  die  intestate,  but  that  the  husband  may  demand  and  have  ad- 
ministration of  their  rights,  credits,  and  other  personal  estates,  and 
recover  and  enjoy  the  same  as  before.  And  although  he  die  without 
having  taken  out  letters  of  administration  to  his  deceased  wife,  her 
next  of  kin,  on  taking  out  such  administration,  will  be  a  trustee  for 
the  husband's  personal  representative;  for  the  operation  of  this  clause 
in  the  statute  of  frauds  is  not  confined  to  the  life  of  the  husband,  nor 
to  the  circumstances  of  his  having  reduced  any  part  of  his  wife's 
personal  estate  into  possession,  but  provides  that  no  part  of  her  estate 
shall  be  distributable  among  ^ler  relations  after  her  death(^). 

On  the  construction  of  the  statute  of  distributions,  a  vai'iety  of 
points  have  been  resolved. 

After  the  allotment  of  the  third  to  the  widow,  the  statute,  as  we 
have  seen,  directs  a  distribution  of  the  residue  by  equal  portions 
among  the  intestate's  children,  and  such  persons  as  legally  represent 
such  children,  in  case  any  of  them  be  dead,  that  is,  their  lineal  de- 
scendants to  the  remotest  degree(A). 

To  attain  a  clear  apprehension  of  the  subject,  three  sorts  of  cases 
[374]  may  be  supposed  :  First,  where  none  of  the  intestate's  chil- 
dren are  dead.  Secondly,  where  the  intestate's  children  are  all 
dead,  all  of  them  having  left  children.  Thirdly,  where  some  of  the 
intestate's  children  arc  living,  and  some  dead,  and  such  as  are  dead 
have  each  of  them  left  children. 

On  the  first  hypothesis,  that  is  to  say,  where  none  of  the  intestate's 
children  are  dead;  it  is  sufficiently  obvious  that  after  the  wife  has 
had  her  third  allotted  to  her,  the  remaining  two-thirds  shall,  pursu- 
ant to  the  statute,  be  equally  divided  among  all  the  children  of  the 
intestate,  as  in  this  case  they  all  claim  in  their  own  right.  A  brother 
or  sister  of  the  half  blood  shall  be  equally  entitled  to  a  share  witH 
one  of  the  whole  blood,  inasmuch  as  they  arc  both  equally  near  of 
kin  to  the  intestate(e).     Nor  shall  their  being  posthumous  in  either 

(/)  Vid.  supr.  85.  ley,  Raym.  500.     Pelt's  Case,  1  P. 

(g)  Squib  V.  Wyn,  I  P.  Wms.  .381.  Wms.  27. 

(A)    Vid.    i    Burn.    Eccl.    L.    .358.  (/)  .3  IJac.  Abr.  71.    Com.  Dig.  Ad- 

Com.  Dig.  Admon.  H.  Carter  v.  Craw-  mon.  II.  Smitli  v.  Tracy,  1  Mod.  209. 


374  OF    DISTRIBUTION.  [bOOK  III. 

case  make  any  difference(^).  For  a  child  en  ventre  sa  mere  at  the 
time  of  the  father's  death,  beino;  a  person  in  rerum  natura,  is  by 
the  rules  of  the  common  and  civil  law,  to  all  intents  and  purposes,  a 
child,  as  much  as  if  born  in  the  father's  lifetime,  and,  consequently, 
is  entitled  under  the  statute(/).  If  the  intestate  leave  only  one  child, 
such  case  is  not  to  be  considered  as  omitted  by  the  statute;  there- 
fore, in  case  he  also  leave  a  wife,  she  shall  have  only  a  third  part, 
and  the  other  two-thirds  shall  go  to  such  child(m).  So,  where  there 
is  only  one  to  claim  under  the  statute,  and  therefore,  literally  and 
strictly  speaking,  there  can  be  no  distribution,  yet  such  individual 
shall  be  entitled  to  the  property (n). 

[375]  In  regard  to  the  second  supposition,  if  A.  have  three  chil- 
dren B.  C.  and  D.,  and  they  all  die,  B.  leaving,  for  instance,  two 
children,  C.  three,  and  D.  four,  and  A.  afterwards  die  intestate;  in 
that  case  all  his  grand-children  shall  have  an  equal  share;  for  as  his 
children  are  all  dead,  their  children  shall  take  as  next  of  kin.  Such 
also  would  be  the  case  with  respect  to  the  great  grand-children  of 
the  intestate,  if  both  his  children  and  grand-children  had  all  died 
before  him(o). 

In  all  the  above  instances,  the  parties  are  said  to  take  per  capita^ 
or,  in  other  words,  equal  shares  in  their  own  right(jo). 

Thirdly,  in  the  event  of  some  of  the  intestate's  children  being 
living,  and  some  dead,  and  such  as  ar(|  dead  having  each  left  chil- 
dren; the  grand-children  \z\q  per  stirpes,  that  is  to  say,  not  in  their 
own  right,  but  by  represcntation(9).  Thus,  for  example,  if  A.  have 
three  sons,  B.  C.  and  D.,  and  B.  die,  leaving  four  children,  and  C. 
die,  leaving  two  :  on  A's  dying  intestate,  one  third  shall  be  allotted 
to  D.,  one  third  to  B's  four  children,  and  the  remaining  third  to  C.'s 
two  children;  for  these  gi*and-children  are  entitled  as  representing 
their  respective  parents(/'). 

After  directing  the  residue  to  be  divided  among  the  children,  or 
[376]  their  representatives,  as  above  stated,  the  statute  provides, 
that  no  child  of  the  intestate,  except  his  heir  at  law,  on  whom  he 
settled  in  his  lifetime  any  estate  in  lands,  or  pecuniary  portion,  equal 

S.  C.  2  Mod.  204.  2  Jones,  93.   S.  C.  («)  4  Burn.    Eccl.   L.  343.     3  P. 

1  VentT.  316.  S.  C.  2  Lev.  173.  Show.  Wms.  49,  note  (d).  Palmer  v.  Garrard, 

Pari.  Ca.  108.    Earl  of  Winch  el  sea  v.  Prec.  in  Ch.  21. 

Norcliffe,    1    Vern.   437.     Crooke  v.  (o)  3  Bac.  Abr.  75.    1  Eq.  Ca.  Abr. 

Watt,  2  Vern.  124.     Brown  v.  Farn-  249,  pi.  7.     Walsh  v.  Walsh,  Prec. 

dell,  Carth.  51.  Chan.  54.    Bowers  v.  Littlewood,  1 

{k)  Burnet  v.  Man,  1  Ves.  156.     4  P.  Wms.  595.     Davers  v.  Dewes,  3 

Burn.  Eccl.  L.  344.    Ball  v.  Smith,  2  P.  Wms.  50.  Lloyd  v.  Tench,  2  Ves. 

Freem.  230.     Edwards  v.  Freeman,  2  213.  Dnrantv.  Prestwood,  1  Atk.  454. 

P.  Wms.  446.  .Tanson  v.  Bury,  Bunb.   159.     2   Bl. 

(/)  Wallis  V.  Hodgson,  2  Atk,  117.  Com.  517. 

See  also  Thellusson  v.  Woodford,  11  (/>)  2  Bl.  Com.  218.  517. 

Ves.jun.  139.  (7)  2  Bl.  Com.  217. 

(ot)  3  Bac.  Abr.  75.    Brown  v.  Farn-  (r)  3  Bac.  Abr.  75.    1  Eq.  Ca.  Abr. 

dell,  Carth.  52.    Skin.  212,  pi.  5.  219,  249.    Walsh  v.  Walsh,  Prec.  Chan. 

pl.  3.  54.   2  Bl.  Com.  517. 


CHAP.  VI.]  OF  ADVANCEMENT.  376 

to  the  distributive  shares  of  the  other  children,  shall  participate  with 
them  of  the  surplus;  but  if  the  estate  so  given  him  by  way  of  ad- 
vancement be  not  equivalent  to  their  shares,  then  that  such  part  of 
the  surplus  as  will  make  it  so,  shall  be  allotted  to  him. 

The  statute  does  not  divest  the  child  of  any  property  which  has 
thus  been  given  to  him,  however  unequal  it  may  have  been,  or  how 
much  soever  it  may  exceed  the  residue  :  he  may,  if  he  pleases,  keep 
it  all  :  if  he  be  not  contented,  but  would  have  more,  then  he  must 
bring  what  he  has  before  received,  as  the  law  expresses  it,  into  hotch- 
pot, that  is,  into  the  general  mass  of  the  property  to  be  so  divided. 

This  is  the  clear  intention  of  the  act,  grounded  on  that  principle 
of  equality(.y),  to  which  a  court  of  equity  is  ever  inclined. 

Therefore,  before  a  younger  child  has  any  claim  to  a  share  of  the 
distribution,  he  must  first  bring  his  advancement  into  hotchpot. 

The  provision  in  the  statute  applies  only  to  the  case  of  actual  in- 
testacy; and  where  there  is  an  executor,  and  consequently  a  complete 
will,  though  the  executor  may  be  declared  a  trustee  for  the  next  of 
kin,  they  take  as  if  the  residue  had  been  actually  given  to  them, — 
Therefore  a  child  advanced  by  her  father  in  his  life,  cannot  be  called 
on  to  bring  her  share  into  hotchpot(/). 

What  shall  constitute  such  advancement,  is  now  to  be  discussed. 

If  a  father  purchase  for  a  son  an  advowson,  or  any  other  ecclesi- 
[377]  astical  benefice,  or,  if  he  buy  him  any  office,  civil  or  military, 
these  are  held  to  be  such  advancements  either  partial  or  complete, 
according  to  the  comparative  value  of  the  estate  to  be  distributed(?f). 
And  although  the  office  be  only  at  will,  as  a  gentleman  pensioner's 
place,  or  a  commission  in  the  army,  it  is  regarded  in  the  same 
light(i^). 

A  provision  made  for  a  child  by  settlement,  either  voluntary  or 
for  a  good  consideration,  as  that  of  a  marriage,  is  an  advancement 
pro  tanto{x). 

JNor  does  the  statute  extend  only  to  land  itself(y),  when  settled  on 
a  younger  child  by  the  father,  but  also  to  a  charge  on  the  land,  crea- 
ted by  him  for  the  benefit  of  such  child;  therefore,  if  a  father  settle 
a  rent  out  of  his  lands  on  a  younger  child,  this  also  is  such  aVi  ad- 
vancement as  is  intended  by  the  statute(z).  Nor  is  it  necessary  that 
the  provision  should  take  place  in  the  father's  lifetime(«).  If  by 
deed  he  settle  an  annuity,  to  commence  after  his  death,  on  such  child, 
it  is  of  the  same  description(6).    So  a  reversion  settled  on  a  child,  as 

(.s)  Edwards  V.  Freeman,  2  P.  Wtns.  440.  444.     Pliiney  v.  Phiney,  2  Vern. 

443.  449.    4  Burn  Eccl.  L.  344.   2  Bl.  G38, 

Com.  190.  517.  (?/)  11   Vin.  Abr.  192.  2  P.  Wms. 

(/)  Per  Master  of  the  Rolls,  Walton  441. 

V.  Walton,  14  Ves.  jun.  324.  (z)  Edwards  v.  Freeman,  2  P.  Wms. 

(w)  3  P.  Wms.  317,  note  (o).     Sed  441. 

vid.  Swinb.  p.  3,  s.  18.  {a)  Ibid.  2  P.  Wms.  440.  1 15. 

(it-)  3  P.  Wms.  317,  note  (o).  {b)  Ibid.  2  P.  Wms.  442.  Swinb.  p. 

(x)  Edwardsv.  Freeman,2P.  Wms.  3,  s.  4. 
33 


377  OF  ADVANCEMENT.  [bOOK  III. 

it  is  capable  of  being  valued,  is  of  the  same  nature(c).  A  portion 
secured  to  a  child,  although //i  y?/7i/ro,  is  also  an  advancemcnt(c?). 
[378]  And  were  it  only  contingent,  yet  when  the  contingency  has 
happened,  it  shall  be  thus  considered (e). 

A  portion  for  a  daughter,  to  be  raised  out  of  land,  on  her  attaining 
the  age  of  eighteen,  or  the  day  of  her  marriage,  was  accordingly  held 
to  be  an  advancement  to  her  when  she  married,  although  she  were 
under  that  age,  and  unmarried,  at  the  time  of  the  intestate's  death(y). 
A  portion,  also,  while  contingent,  is  capable  of  a  valuation,  and 
may,  it  seems,  be  brought  into  hotchpot(,§-);  or  the  court  may  order,- 
that,  in  case  the  contingency  should  happen,  the  portion  shall  be  so 
distributed  as  to  make  the  rest  of  the  children  equal  with  the  child 
on  whom  it  was  settled(/i).  But  the  contingency  must  be  so  limited 
as  necessarily  to  arise  within  a  reasonable  time,  as  in  the  above  case, 
where  the  portion  was  secured  for  the  daughter,  on  her  attaining  the 
age  of  eighteen,  or  on  her  marriage(z).  A  child  advanced  in  part 
shall  bring  in  his  advancement  only  among  the  other  children ;  for 
no  benefit  shall  accrue  from  it  to  the  widow(/i?).  If  a  child  who 
has  received  any  advancement  from  his  father,  shall  die  in  his  father's 
lifetime,  leaving  children,  such  children  shall  not  be  admitted  to 
their  father's  distributive  share,  unless  they  bring  in  his  advance- 
ment; since,  as  his  representatives,  they  can  [379]  have  no  better 
claim  than  he  would  have  had  if  living(/). 

By  this  statute,  although  the  heir  at  law  shall  not  abate  in  respect 
to  the  land  which  came  to  him  by  descent,  or  otherwise,  from  the 
intestate;  yet  if  he  hath  had  an  advancement  from  his  father  in  his 
lifetime  out  of  the  personal  estate,  he  shall  abate  for  it  in  the  same 
manner  as  the  other  children(7/^).  And,  were  it  merely  the  use  of 
furniture  for  his  life,  it  shall  be  regarded  as  an  advancement  pro 
tanto{n).  So,  where  A.  on  his  marriage  covenanted,  in  case  of  a 
second  marriage,  to  pay  his  eldest  son  by  his  first  wife  five  hundred 
pounds;  she  died,  leaving  a  son,  and  other  children,  and  A.  after  a 
second  marriage  died  intestate;  it  was  decreed,  that  his  heir  should 
bring  in  the  money,  although  he  were  in  the  nature  of  a  purchaser, 
under  a  marriage  settlement(o). 

Co-heiresses  shall  also,  it  seems,  bring  in  such  advancement,  not 
being  land,  as  they  may  have  respectively  received  from  their  father, 
before  they  shall  be  entitled  to  their  distributive  shares,  agreeably  to 

(c)  Edwards  v.  Freeman,  2  P.  Wms.     endo.     2  P.  Wms.  446. 

442.  (i)  2  P.  Wms.  440.  445.  449. 

(d)  lb.  2  P.  Wms.  445.  {k)  3  Eac.  Abr.  77.     Ward  v.  Lant, 

(e)  lb.  2  P.  Wms.  442. 446.  449.  Prec.  Chan.  182.  184. 

(/)  2  P.  Wms.  435.     1   Eq.   Ca.  (/)  Proud  v.  Turner,  2  P.  Wms.  560. 

Abr.  249,  pi.  10.  2  Eq.  Ca.  Abr.  446,         (m)  Com,  Dig.  Admon.  H.   4  Burn, 

pi.  3.  Eccl.  L.  344.     Fitzg.  285. 

(g)  Per  Sir  Jos.  Jekyl,  M.R.  argu-         (?i)  Com.  Dig.  Admon.  H.     Fitzg. 

endo.     2  P.  Wms.  442.  285. 

(A)  Per  Lord  Raymond,  C.  J.  argu-  (o)  Phiney  v.  Pt.iney,  2  Vern.  638. 


CHAP.  VI.]  OF  ADVANCEMENT.  379 

the  principle  of  the  act,  and  to  the  object  of  a  just  and  impartial 
father  to  promote  an  equality  among  his  children(^). 

[380]  Such  is  the  nature  of  the  advancement  which  will  exclude 
a  child  from  any  part  of  the  residue.  Many  benefits,  however,  may 
be  conferred  upon  him  by  his  father,  which  have  been  held  not  to 
be  of  this  description. 

Small  inconsiderable  sums  of  money  given  to  a  child  by  the  father, 
or  mere  trivial  presents  he  may  make  to  the  child,  as  of  a  gold  watch 
or  wedding  clothes,  shall  not  be  deemed  an  advancement(^);(l)  nor 
,  shall  money  expended  by  the  father  for  his  maintenance,  nor  given 
to  bind  him  apprentice,  nor  laid  out  in  his  education  at  school,  at 
the  university,  or  on  his  travels(r).  Nor  shall  what  a  child  receives 
out  of  the  mother'' s  estate  be  so  regarded;  for  the  statute  of  distribu- 
tions was  grounded  on  the  custom  of  London,  which  never  affected 
a  widow's  personal  estate,  and  seems  to  include  those  only  within 
the  clause  of  hotchpot,  who  are  capable  of  having  a  wife  as  well  as 
children,  which  must  be  husbands(5).  Nor  shall  a  provision  which 
a  father  may  make  for  his  child  by  will,  (for  a  case  may  occur  where 
a  testator  may  die  intestate  as  to  part  of  his  personal  estate,)  be  con- 
sidered in  that  light.  Nor  land  given  by  the  father's  will  to  a 
younger  child(/). 

Such  a  provision  as  shall  be  construed  an  advancement,  must  re- 
sult from  a  complete  act  of  the  intestate  in  his  lifetime(w),  by  which 
he  divested  himself  of  all  property  in  the  subject,  though,  as  we 
have  just  seen(z^j),  it  may  not  take  effect  in  possession  till  after  his 
death.  Still  less  shall  property  given  or  bequeathed  to  the  child 
[381]  by  any  other  person  be  so  denominated(a:) ;  and,  least  of  all, 
shall  a  fortune  of  his  own  acquisition(y). 

In  respect  to  Borough  English  lands,  which  descend  to  the 
youngest  son,  it  has  been  held  that  he  should  allow  for  them,  on 
the  ground,  that  the  statute  intended  merely  to  provide  for  the 
heir  of  the  family,  that  is  the  heir  by  the  common  law,  and  not  one 
who  is  heir  only  by  custom,  in  some  particular  places(2').  But  that 
decision  has  been  over-ruled,  and  it  is  now  settled,  that  such  young- 
est son  shall  have  an  equal  share  of  the  distribution  with  the  other 
children,  without  regard  to  this  species  of  estate;  for  although  the 
exception  in  the  statute  extend  only  to  the  eldest  son,  yet  no  law 

(p)4Burn.  Eccl.  L.341.    Edwards  35G. 

V.  Freeman,  2  P.  Wms.  440.  443.  (/)  Edwards  v.  Freeman,  2  P.  Wms, 

(-7)  3  P.  Wms.  317,  note  (o).     El-  440.  446. 

liott  V.  Collier,  1  Ves.  16.     Garon  v.  (u)  2  P.  Wms.  440. 

Trippit,  Ambl.  189.   Elliott  v.  Collier,  (w)  Vid.  supr.  377. 

3  Atk.  528.  \x)  3  Bac.  Abr.  76.     Swinb.  p.  3,  s. 

(r)  3  Bac.  Abr.  76.     Swinb.  p.  3,  s.  18. 

18.     Edwards  v.  Freeman,  2  P.  Wms.  (y)  Swinb.  p.  3,  s.  18. 

449.  (z)  Per  Sir  Jos.  Jekyl,  M.  R.  Stra. 

(«)  Holt  V.  Frederick,  2  P.  Wms.  935. 


(1)  AfCa-w  V.  Ble-wit,  2  M'Cord's  Cha.  Rep.  102. 


381  OF  ADVANCEMENT.  [l500K  111. 

exists  to  oblige  the  lieir  in  Borough  English  to  bring  in  his  lands. 
The  statute  contains  no  such  requisition.  It  speaks  merely  of  such 
estate  as  a  child  hath  by  settlement,  or  by  advancement  of  the  in- 
testate in  his  lifetime(«). 

Thus  must  the  surplus  be  distributed  in  case  the  intestate  has 
left  a  wife  and  children,  or  rej)rcscntative  of  children. 

The  statute  then  provides,  that  if  there  be  no  children  or  legal 
[382]  representatives  of  them  in  existence,  a  moiety  shall  go  to  the 
widow,  and  a  moiety  to  the  next  of  kindred,  in  equal  degree,  and  their 
representatives;  but  no  representation  among  collaterals  shall  be  ad- 
mitted farther  than  brothers'  and  sisters'  children.  If  there  be  no 
widow,  the  whole  shall  go  to  the  children.  If  there  be  neither  widow 
nor  children,  then  the  whole  shall  be  distributed  among  the  next  of 
kin,  in  equal  degree,  and  their  representatives,  as  above  mentioned.(l ) 

The  next  of  kin  referred  to  by  the  statute  are  to  be  traced  by  the 
same  rules  of  consanguinity  as  those  who  are  entitled  to  letters  of 
administration(Z»).     Those  rules  have  been  already  discussed(c). 

The  mother,  therefore,  as  well  as  the  father,  succeeded  to  all  the 
personal  effects  of  the  children  who  died  intestate  without  wife  or 
issue,  in  exclusion  of  the  other  sons  and  daughters,  the  brothers  and 
sisters  of  the  deceased;  and  such  is  the  law  still  with  respect  to  the 
father(^):  but  by  the  stat.  1  Jac.  2.  c.  17,  s.  7,  if,  after  the  death  of 
the  father,  and  in  the  lifetime  of  the  mother,  any  of  the  children  die 
intestate,  without  wife  or  children,  every  brother  and  sister,  and  their 
representatives,  shall  have  an  equal  share  with  her.  The  principle  of 
which  provision  is  this,  that  otherwise  the  mother  might  marry,  and 
transfer  all  to  another  husband(e). 

[3S3]  On  this  last-mentioned  statute,  it  has  been  held,  that  if  A. 
die  intestate,  and  without  issue,  leaving  a  wife,  and  several  brothers 
and  sisters,  and  his  mother  living,  the  mother  shall  have  no  more 
than  an  equal  share  of  the  moiety  of  the  estate  with  the  brothers  and 
sisters.  And  although  there  should  be  no  brother  or  sister,  yet  if 
there  be  children  of  a  deceased  brother  or  sister,  they  shall  partake 
with  their  grandmother  to  the  same  extent  as  their  parent  would  have 
been  entitled  (/").  But  if  there  be  neither  brother  nor  sister,  nor  re- 
presentative of  a  brother  or  sister,  the  case  is  without  the  statute,  and 

(«)  Per  Lord  Talbot,  C.  Lutwyche  (e)  Blackborough  v.  Davis,  1  Salk. 

V.  Lutwyche,  Ca.  Temp.  Talb.   276.  251,  pi.  2.  S.  C.  1    P.   Wms.  48,  49. 

4  Burn.  Eccl.  L.  345.  S.  C.  Lord  Raym.  684.  Blackborough 

[b)  2    Bl.     Com.    515.     Lloyd  v.  v.  Davis,  Com.  Rep.  26,  pi.  95. 
Tench,  2  Ves.  214.  (/)    Keylway  v.    Keyhvay,    2  P. 

(c)  Vid.  supr.  87.  Wms.  344.     S.  C.  1  Stra.  710.  S.  C. 
{d)  2  Bl.  Com.  513.  516.     Evelyn      Gilb.  Rep.  189.     Stanley  v.  Stanley, 

V.  Evelyn,  Ambl.  192.  1  Atk.  455. 

(1)  Under  the  intestate  laws  of  Pennsylvania,  if  a  man  die  intestate,  leaving  neither  wi- 
dow nor  lawful  issue,  nor  father,  brother  nor  sister,  but  leaving  a  mother,  real  estate  ac- 
quired by  his  father,  and  descending  to  him,  goes  to  his  relations  on  the  part  of  the  father, 
in  exclusion  of  the  relations  on  the  part  of  the  mother,  in  equal  degree.  Jievaii  v.  Tay- 
lor, 7  Serg.  8t  Rawle,  397,  overruling  Walker^s  Adm.  v.  Smith,  3  Yeates,  480. 


CHAP.  VI.]  OF  DISTRIBUTION.  383 

the  whole  of  such  intestate's  effects  shall  devolve,  as  hefore,  to  his 
inother(,o-).  Also,  by  analogy  to  the  statute  of  distributions,  such 
representation  shall  not  be  carried  beyond  brothers'  and  sisters'  chil- 
dren (/?).  A  mother-in-law  of  the  intestate,  it  is  clear,  can  claim  no 
share  in  the  distribution,  she  not  being  of  his  blood(i). 

To  return  now  to  the  statute  of  distributions.  That  clause  of  it 
which  expresses  that  there  shall  be  no  representations  among  collate- 
rals beyond  brothers'  and  sisters'  children,  must  be  construed  to 
mean  brothers  and  sisters  of  the  intestate,  and  not  as  admitting  repre- 
sentation, when  the  distribution  happens  to  fall  among  brothers  and 
sisters  who  are  remotely  related  to  the  intestate;  for  the  intestate  is 
the  subject  of  the  act:  it  is  his  estate,  his  wife,  his  children,  and  for 
the  same  reason  his  brothers'  and  sisters'  children,  for  [384]  he  is 
equally  correlative  to  all(A').  Therefore  it  has  been  held,  that  if  the 
brother  of  an  intestate  hath  a  grandson,  and  a  sister  has  a  son,  or 
daughter,  the  grandson  shall  not  have  distribution  with  the  son  or 
daughter  of  the  sister(/).  So  it  has  been  decreed,  that  if  an  intestate 
leave  an  uncle,  and  a  deceased  aunt's  son,  the  latter  shall  have  no  dis- 
tributive share(m).  Thus  though,  as  we  have  seen(/z),  among  lineals, 
representatives  adinfinitum  shall  share  in  the  distribution  of  an  in- 
testate's personal  estate,  yet  among  collaterals,  except  only  in  the  in- 
stance of  the  intestate's  brothers'  and  sisters'  children,  proximity  of 
blood  shall  alone  give  a  title  to  it. 

The  children  of  an  intestate's  brothers  and  sisters,  who  were  de- 
ceased at  his  death,  shall  id\^Q  per  capita.  Therefore,  if  an  intestate 
leave  a  deceased  brother's  only  son,  and  ten  children  of  a  deceased 
half-sister,  the  ten  children  of  the  deceased  half-sister  shall  take  ten 
parts  in  eleven  with  the  son  of  the  deceased  brother(o). 

The  words  of  the  statute  must  be  taken  together.  The  expression 
pro  sico  cuique  jure  will  let  in  any  advantage  of  equality  or  prefer- 
ence to  which  a  person  was  entitled  by  our  law  before  the  statute. 
Therefore  a  grandfather,  although  he  be  in  an  equal  degree  of  con- 
sanguinity with  the  brother  of  the  deceased,  shall  have  no  share  with 
him  in  the  distribution:  for,  by  the  common  law,  there  was  but  one 
degree  between  brother  and  brother,  and  it  would  be  unnatural  to 
carry  the  personal  estate  up  to  the  grandfather,  who  must  be  presumed 
to  have  been  long  before  provided  for,  and  to  be  going  out  of  life(jo). 

So  a  grandfather  shall  exclude  an  uncle;  and,  independently  of  the 
provisions  of  the  statute,  by  the  common  law  the  former  was  entitled 

{g)  4  Burn.Eccl.  L.  374.     11  Vin.  C.  Com.  Rep.87.pl.  56.     Pett's  case, 

Abr.  196.  IP.  Wms.  25.   Bowers  v.  Littlewood, 

(/t)  Stanley  V.  Stanley,  1  Atk.457,  ib.  595. 

458.  (/)  1  Salk.  250.     1  Ld.  Raym.  571. 

{i)  Duke  of  Rutland  v.  Duchess  of  1  P.' Wms.  25.     Com.  Rep.  87. 

Rutland,  2  P.  Wms.  216.  (m)  Bowers  v.  Littlewood,    1    P. 

{k)  Carter  v.  Crawley,  Raym.  496.  Wms.  594. 

Caldicot  V.  Smith,  2  Show.  286.  Bee-  {n)  Supr.  373. 

ton  V.  Darkin,  2  Vern.  168.     Maw  v.  {o)  Ibid.     1  P.  Wms.  595. 

tlarding,  ibid.  233.     Pett  v.  Pett,   1  {p)  Evelyn  v.  Evelyn,  Ambl.  191, 

Salk.  250.     S.  C.  Lord  Raym.  571.  S.  vid.  supr.  90  and  91. 


384  OF  DISTRIBUTION.  [bOOK  III. 

to  a  preference,  as  being  of  the  right  line,  whereas  the  latter  is  only 
of  the  collateral  line;  in  other  words,  the  grandfather  is  [385]  the 
root  of  the  kindred,  and  the  uncle  is  only  the  branch(9). 

The  law,  of  course,  is  the  same  in  respect  to  grandmothers  and 
aunts(r). 

Where  the  next  of  kin  are,  a  grandfather  by  the  father's  side, 
and  a  grandmother  by  the  mother's,  they  shall  take  in  equal  moieties, 
as  being  in  equal  degree:  for,  in  respect  of  such  claims,  as  hath  for- 
merly been  observed(5),  dignity  of  blood  makes  no  diflerence(^). 

Uncles  and  nephews,  aunts  and  nieces,  are  in  equal  degree.  And 
where  the  intestate  left  two  aunts,  and  a  nephew  and  a  niece,  chil- 
dren of  a  deceased  brother,  Lord  Hardwicke,  C.  ordered  the  surplus  to 
be  divided  into  four  parts  equally  among  them,  holding  that  as  they 
were  all  in  equal  degree,  the  children  were  to  take  in  their  own  right, 
and  not  by  representation;  but  that  if  their  father  had  been  living,  he 
would  have  been  entitled  to  the  whole(M). 

The  grand-daughter  of  a  sister,  and  the  daughter  of  an  aunt  of  the 
intestate  are  also  in  equal  degree,  and  entitled  to  equal  distribution(t:;). 

The  next  of  kin,  though  collateral,  is  preferred  before  a  relation, 
though  lineal,  if  he  be  of  the  ascending  line,  and  more  remote(a:). 

[386]  Although  the  statute  direct  that  no  distribution  shall  be 
made  till  a  year  be  elapsed  from  the  death  of  the  intestate,  yet,  if  a 
person  entitled  to  a  distributive  share  shall  die  within  the  year,  such 
interest  shall  be  considered  as  vested  in  him,  and  shall  go  to  his  per- 
sonal representative;  for  this  proviso  makes  no  suspension  or  con- 
dition, precedent  to  the  interest  of  the  parties,  but  was  inserted  merely 
with  a  view  to  creditors. 

The  statute,  also,  is  in  the  nature  of  a  will  framed  by  the  legisla- 
ture for  all  such  persons  as  die  without  having  made  one  for  them- 
selves; and,  by  consequence,  the  parties  entitled  in  distribution  re- 
semble a  residuary  legatee:  and  it  has  been  always  held,  that  if  such 
legatee  die  before  the  amount  of  the  surplus  is  ascertained,  still  his 
representative  shall  have  the  whole  residue,  and  not  the  representa- 
tive of  the  first  testator(y).(l) 

(y)  Blackborough  V.  Davis,  1  Salk.  Wms.  53. 

38.  251.     S.  C.    Ld.  Raym.  684.  S.  (u)  Durant  v.   Prestwood,   1  Atk. 

C.  Com.  Rep.  96.  108,  109.  S.  C.  12.  454. 

Mod.   615.     Lloyd  v.  Tench,  2  Ves.  (tt-)  Com.  Dig.  Admon.  H.  Thomas 

215.     Blackborough  v.    Davis,  1  P.  v.  Ketteriche,  1  V^es.  333. 

Wms.  41.  {x)  Blackborough  v.  Davis,    1  P. 

(r)  Com.  Dig.  Admon.  H.    1  Salk.  \Vms.  51. 

38*.   251.     "Woodroff  v.    Wickworth,  (y)  3    Bac.    Abr.   75.     Brown  v. 

Prec.  Ch.  527.  Farndell,    Carth.   51,    52.     Freke   v. 

(s)  Supr.  91.  Thomas,  Comb.  112.   Taylor  v.  Acres, 

{f)  Blackborough    v.    Davis,  1  P.  2   Show.   285.     Palmer  v.  Aliicock, 

(1)  As  to  the  meaning  of  "  legal  representatives"  under  a  devise^  see  Ware^s  Lessee  v. 
Fisher,  2  Yeates,  578.  And  as  to  the  meaning  of  the  same  words  in  the  act  of  29th  March, 
1813,  "  for  the  relief  of  sundrj-  landholders  in  the  manor  of  Springettsbury  in  the  county 
of  York"  (Pamph.  Laws,  205),  and  the  act  of  21st  December,  1784,  sect.  9,  giving  the 


CHAP.  VI.]  OF  DISTRIBUTION.  386 

Affinity,  or  relationship  by  marriage,  except  in  the  instance  of  the 
wife  of  the  intestate,  gives  no  title  to  a  share  of  his  property:  as,  if 
A.  have  a  son  and  a  daughter,  B.  and  C,  and  they  both  die,  the  for- 
mer leaving  a  wife,  and  the  latter  a  husband;  on  A.'s  dying  after- 
wards intestate,  such  husband  and  wife  have  neither  of  them  any 
claim  on  his  estate. 

Under  a  will,  a  wife  is  not  one  of  the  next  of  kin  in  the  ordinary 
sense.  Therefore  where  a  testator  gave  the  residue  of  his  property 
"to  be  divided  amongst  my  next  of  kin,  as  if  I  had  died  intestate," 
the  widow  was  held  not  to  be  entitled  to  any  share  of  such  resi- 
due(z).(l) 

A  gift  of  property  to  my  nearest  surviving  relations  has  been 
held  to  mean  the  testator's  brothers  and  sisters,  to  the  exclusion  of 
nephews  and  nieces(a). 

If  a  bastard,  or  any  other  person  having  no  kindred,  die  intestate, 
[387]  without  wife  or  child,  his  effects,  as  we  have  seen(6),  belong  to 
the  king,  who,  with  the  exception  of  a  small  part,  usually  grants  them 
by  letters  patent  or  otherwise;  and  then  such  grantee  seems  of  course 
entitled  to  the  administration,  and  consequently  to  the  sole  enjoy- 
ment of  the  property(c). 

The  personal  property  of  an  intestate,  wherever  situated,  must  be 
distributed  according  to  the  law  of  the  country  where  his  domicil 
was,(2)  and  such  is  prima  Jacie  the  place  of  his  residence;  but  that 
may  be  rebutted;  or  supported  by  circumstances(c?);  for  although  the 
locality  of  the  party's  abode  at  the  time  of  his  death  determine  the 
rule  of  distribution,  yet  it  must  be  a  stationary,  not  an  occasional,  resi- 
dence, in  order  that  the  municipal  institutions  may  attach  on  the 
property(e).  If,  therefore,  an  Englishman  be  settled,  and  die  in  this 
country,  and  administration  be  taken  out  to  him  here,  debts  due  to 
him,  or  other  of  his  personal  effects  in  Scotland,  or  abroad,  shall  be 
distributed  according  to  the  law  of  England(/):  But  if  an  alien  resi- 
dent abroad  die  intestate,  his  whole  property  here  is  distributable 
according  to  the  laws  of  the  country  where  he  so  resides,  otherwise 

Skin.  212.  218.  S.  C.  3  Mod.  58.     11  (i)  Vid.  sup.  107. 

Vin.  Abr.  92.     Wilcocks  v.  Wilcocks,  (c)  2  Bl.  Com.  505.     Doug.  542. 

2  Vern.  559.     3  P.  Wms.  49,  note  (d).  {d  )  2  Ves.  jun.  198.     See  also  Sir 

Lee  V.  Cox,  3  Alk.  422.     Vid.  supr.  Chas.  Douglas's  case  there  cited. 

342.  (e)   1  Wooddes.  385.     Pipon  v.  Pi- 

(z)  Garrick   v.  Lord  Camden,    14  pon,  Ambl.25.     Burn  v.  Cole,  ib.  415, 

Ves.  jun.  372.  416. 

(a)  Smith  V.  Campbell,  Coop.  Rep.  (/)  Thorne  v.  Watkins,  2  Ves.  35. 
275. 

right  of  pre-emption,  to  certain  lands  on  the  west  branch  of  Susquehanna  river  to  settlers 
and  their  legal  representatives  (Carey  &i  Biorcn's  Laws,  vol.  3,  p.  519.);  see  Comm.  v. 
Bryan,  C  Serg.  k  Rawle,  81;  Duncan  v.  Walker,  2  Uall.  liep.  205. 

(1)  See,  however,  as  to  Pennsylvania,  JJarrah  et.  al.  v.  M^jYair,  Ashm.  Rep.  236. 

(2)  Gider  v.  O'Baniel,  1  Binn.  349.  JIarrwy  \.  Jiichards,  1  Mason's  Rep.  381;  and 
the  cases  there  cited  by  Judge  Storj-.  Williamson  \.  Smart,  Tayl.  Rep.  219.  Cam.  & 
Norw.  146. 


387  OF  DISTRIBUTION.  [bOOK  III. 

no  foreigner  could  deal  in  our  funtls  but  at  tlie  peril  of  his  effects 
going  according  to  our  laws,  and  not  to  those  of  his  own  country(^). 
Where  a  native  of  England  domiciled  in  Guernsey  died  intes- 
tate, leaving  a  widow  and  infant  children,  and  the  widow  was  ap- 
pointed guardian  of  the  children  by  the  royal  court  of  Guernsey,  and 
[3S8]  sold  the  property  of  the  intestate,  and  invested  the  produce  in 
tJje  English  funds,  and  afterwards  came  to  England  with  her  chil- 
dren, and  was  domiciled  there:  A  question  arose  on  the  death  of  some 
of  the  children  under  age,  whether  their  shares  of  the  property  be- 
came distributable  according  to  the  law  of  England  ov  of  Guernsey; 
and  it  was  held  that  the  law  of  E?igland  was  to  govern  the  succession, 
the  domicil  of  the  children  being  (according  to  the  opinion  of  for- 
eign jurists,  our  own  law  being  silent  on  the  subject)  to  follow  the 
domicil  of  the  surviving  parent,  where  no  fraudulent  intention  can 
be  imputed.  But  fraud  may  be  presumed  where  no  reasonable  cause 
appears  for  the  removal(/i). 


Sect.  IL 
Of  distribution  by  the  custom  of  London. 

I  PROCEED,  in  the  last  place,  to  consider  the  customs  of  the  city  of 
London,  on  this  subject,  and  also  of  the  province  of  York,  and  the 
principality  of  Wales;  which  having  peculiar  customs  of  distributing 
intestate's  effects,  are  expressly  excepted  from  the  operation  of  the 
statute. 

Although  the  restraints  in  regard  to  the  power  of  making  wills, 
which  subsisted  in  those  respective  districts,  are  now  removed  by 
different  statutes;  namely,  the  4  &  5  fV.  6,^  M.  c.  2,  explained  by  the 
2  &  3  »dnn.  c.  5,  for  the  province  of  York;  the  7  &  S  W.o.c.  38,  for 
Wales;  and  the  11  6r.  1.  c.  IS,  for  London;  by  which  persons  residing 
in  those  several  places,  and  liable  to  those  customs,  are  empowered 
to  dispose  of  all  their  personal  estates  by  will,  and  the  claims  of  the 
widows,  children,  and  other  relations  to  the  contrary  are  totally  barred; 
yet  those  customs  remain  in  full  force  with  respect  to  such  property 
of  an  intestate(«),  or  where  the  deceased  freeman  agreed  by  writing, 
in  consideration  of  marriage  or  otherwise,  that  his  personal  estate 
should  be  distributed  according  to  the  same.  Their  nature  and  inci- 
dents therefore  demand  now  our  attention. 

[389]  In  the  city  of  London(Z>),  and  in  the  province  of  York(c), 
as  well  as  in  the  kingdom  of  Scotland(^),  and  therefore,  probably 

(g-)  1  Wooddes.  585.     Pipon  v.  Pi-  Test.  194.     3  P.  Wms.  19,  in  note, 
pon,  Ambl.  27.  (6)  Redshaw  v.  Brasier,  Ld.  Raym. 

{h)  Potinger  v.  Wightman,  3  Meri.  1329.     4  Burn.  Eccl.  L.  387. 
Rep.  67.  (c)  4  Burn.  Eccl.  L.  398. 

(a)  2  Bl.  Com.  493.  517,  518.  L.  of         {d)  Ibid.  421. 


CHAP.  VI.]        BY  THE  CUSTOM  OF  LONDON.  389 

also  in  Wales(e),  (respecting  the  latter  of  which,  little  information  is 
to  be  collected,  except  from  the  statute  of  W.  3.)  the  effects  of  the 
intestate,  after  payment  of  his  debts,  are  in  general  divided  according 
to  the  ancient  doctrine  of  the  pars  rationabilis{f),  to  which  I  have 
before  alluded(^). 

And  first,  as  to  the  custom  of  London;  if  a  freeman  of  the  city  die, 
leaving  a  widow  and  children,  his  personal  property,  after  deducting 
her  apparel,  and  the  furniture  of  her  bed-chamber,  is  divided  into 
three  equal  parts,  one  of  which  belongs  to  the  widow,  another  to  the 
children,  and  the  third  to  the  administrator  in  that  character.  If  only 
a  widow,  or  only  children,  they  shall  respectively  in  either  case 
take  one  moiety,  and  the  administrator  the  other(A).  If  neither  wi- 
dow nor  child,  the  administrator  shall  have  the  whole(?). 

The  portion  of  the  administrator  is  styled  in  law  the  dead  man's 
part.  It  is  so  called,  because  formerly,  as  we  have  seen  (A"),  the  or- 
dinary or  his  gi'antee  was  to  dispose  of  it  in  masses  for  the  deceased's 
[390]  soul.  But,  after  the  disuse  of  this  superstitious  practice,  the 
administrator  was  wont  to  apply  it  to  a  better  purpose,  that  is  to  say, 
for  his  own  benefit(/);  till  the  legislature  thought  it  was  capable  of  an 
application  still  better;  and  accordingly,  by  the  stat.  1  Jac.  2.  c.  17, 
it  was  declared,  that  it  should  be  subject  to  the  law  of  distributions. 

Hence,  if  a  freeman  die  worth  eighteen  hundred  pounds  personal 
estate,  leaving  a  widow  and  two  children,  this  estate  shall  be  divided 
into  eighteen  parts;  of  which  the  widow  shall  have  eight,  six  by  the 
custom  and  two  by  the  statute;  and  each  of  the  children  five,  three  by 
the  custom  and  two  by  the  statute;  if  he  leave  a  widow  and  one  child 
only,  she  shall  still  have  eight  parts  as  before;  and  the  child  shall 
have  ten,  six  by  the  custom,  and  four  by  the  statute;  if  he  leave  a 
widow  and  no  child,  the  widow  shall  have  three-fourths  of  the  whole, 
two  by  the  custom  and  one  by  the  statute;  and  the  remaining  fourth 
shall  go  by  the  statute  to  the  next  of  kin(//i). 

A  posthumous  child  shall  come  in  for  his  customary  share  with 
the  other  children(n).  But  the  custom  extends  merely  to  the  wife 
and  children  of  the  freeman,  and  not  to  his  grandchildrcn(o). 

Hence  if  a  freeman  die  intestate,  leaving  a  wife  but  no  child,  yet 
if  there  hath  been  a  child,  and  there  be  any  legal  representatives, 
[391]  that  is,  lineal  descendants  of  such  child,  they  are  admitted  to 
his  distributive  share  of  the  dead  man's  part  under  the  statute, 
though  they  are  entitled  to  no  part  of  his  share  by  the  custom.     In 

(e)  Bum.Eccl.  L.  423.  442.  (/)  Anon.  2  Freem.  85.     Mathews 

(/)  2  Bl.  Com.  518.     Off.  Ex.  97.  v.  Newby,  1  Vern.  133. 

(g)  Supr.  81.  (m)  2  Bl.  Com.  518.     L.  of  Test. 

(h)  Northey  v.  Strange,  1  P.  Wms.  20'J. 

341.     Kegina  v.  Rogers,  2  Salk.  420.  (n)  Walsam  v.  Skinner,  Prcc.  Chan. 

Turner  V.  Jennings,  2  Vern.  612.     L.  49'J.     L.  of  Test.  203.     11  Vin.  Abr. 

of  Test.  210,  211.     Elliott  v.  Collier,  200.     Gilb.  Eq.  liop.  155. 

3  Atk.  527.  (o)  Northey  v.  Strange,  1  P.  Wms. 

(?)  Pcrcival  V.  Crispc,2Show.  175.  341.     Fowko  v.  Hunt,  1   Vern,  397. 

Vid.  L.  of  Test.  192.  Regina  v.  Rogers,  2  Salk.  42G.  L.  of 

(/,•)   Supr.  81.  Test.  210. 
34 


391  DISTRIBUTION  BY  CUSTOM  OF  LONDON.         [bOOK  III. 

that  case,  therefore,  of  the  dead  man's  part  by  the  statute,  the  wife 
shall  have  one-third,  and  the  representatives  shall  have  the  other 
two-thirds;  so  that,  dividing  the  whole  personal  estate  into  six  parts, 
she  shall  have  four,  and  the  representatives  two. 

If  there  be  neither  wife  nor  child,  nor  such  representative  of  a 
child,  the  whole  shall  be  subject  to  the  statute  of  distribution( /?). 

The  custom  attaches,  although  the  freeman  neither  resided,  nor 
died(<7),  nor  left  property(r)  within  the  city. 

In  respect  to  the  widow,  I  have  already  mentioned  that  she  is 
entitled  to  her  apparel  and  the  furniture  of  her  chamber,  which  is 
called  the  widow's  chamber(.5') ;  or,  in  lieu  of  it,  in  case  the  estate 
shall  exceed  two  thousand  pounds,  it  has  been  said  that  she  is  enti- 
tled to  fifty  pounds(^).  The  privilege  of  the  widow's  chamber  is 
analogous  to  her  right  to  paraphernalia  in  general  cases,  and,  like 
that,  shall  in  no  case  be  exercised  to  the  prejudice  of  creditors(w). 

[392]  If  she  be  provided  for  by  a  jointure  before  n'larriage  in  bar 
of  her  customary  part,  she  is  put  in  a  state  of  nonentity  with  regard 
to  the  custom  only(?^>);  but  she  shall  slill  be  entitled  to  her  share 
of  the  dead  man's  part  under  the  statute  of  distributions(a^).  But  if 
the  jointure  is  expressed  to  be  in  bar  of  her  dower,  without  saying 
more,  this  shall  not  bar  her  of  her  customary  share  of  the  personal 
estate,  for  land  is  wholly  out  of  the  custom(y).  Such  also  is  the 
case,  if  the  intestate  covenant  to  lay  out  money  in  a  purchase  of  land 
by  way  of  jointure,  for  the  money  has  in  equity  all  the  qualities  of 
land(z). 

And  CL  fortiori,  she  shall  not  be  excluded  from  her  customary 
share,  if  the  settlement  be  so  expressed;  as  if  it  contain  a  proviso, 
that  she  shall  not  be  barred  or  deprived  of  her  right  to  dower,  or  of 
taking  any  other  gift,  provision,  or  bequest,  her  husband  shall  think 
fit  to  give  or  leave  her  by  deed  or  will,  or  any  other  means  whatso- 
ever(a).  On  the  other  hand,  the  settlement  may  be  expressly  in  bar 
as  well  of  her  share  of  the  dead  man's  part  as  of  her  share  by  the 
custom,  and  then  she  shall  be  excluded  from  both(6):  or  if  it  be 

{p)  L.  of  Test.  192.  221,  222.  1  16.  Pusey  v.Desbouverie,  315.  Med- 
Vern.  200.  calfe  v.  Medcalfe,  1  Atk.  64.  Morris 
{q)  L.  of  Test.  202.  220.  Spencer's  v.  Burroughs,  403.  Tomkyns  v.  Lad- 
case,  1  Roll.  Rep.  316.  Wilkinson  v.  broke,  2  Ves.  592. 
Miles,  1  Sid.  250.  Harwood's  case  {x)  Benson  v.  Bellasis,  1  Vern.  15. 
1  Ventr.  180.  S.  C.  1  Mod.  80.  Rut-  2  Chan.  Rep.  252.  Withill  v.  Phelps, 
ter  V.  Rutter,  1  Vern.  180.    Choraley  v.  Prec.  Ch.  327. 

Chomley,  2  Vern.  48.  82.  Webb.  v.  {y)  1  Ca.  Abr.  158, 159.  Babinatonv. 
Webb,  ib.  110.  Greenwood,  1  P.  Wms.  531.  Blunder 
(r)  Priv.  Lond.  288.  v.  Barker,  647.  Babino-ton  v.  Green- 
es) 2  Bl.  Com.  518.  wood,  Pr.  Chan.  505.  L.  of  Test.  214. 
(0  7  Vin.  Abr.  2,  tit.  Customs,  B.2.  {z)  S.  C.  1  P.  Wms.  532. 
Briddlev.  Briddle,  4Burn.  Ec.  L.  388.  {n)  Kirkman  v.  Kirkman,  2  Bro. 
(u)  Swinb.  p.  0,  s.  13.  Ch.  Rep.  95. 

(u-)  Hancock  v.  Hancock,  2.  Vern.  (i)  1  Eq.  Ca.  Abr.  153.    Atkyns  v. 

665.     Blunder  v.  Barker,  1  P.  Wms.  Waterson,  Gilb.  Eq.  Rep.  95,     S.  C. 

644.     Cleaver  v.  Spurling,  2  P.  Wms.  L.  of  Tost.  214.     Babington  v.  Green- 

527.     Lcwin   v.    Lewin,  3    P.  Wms.  wood,  1  P.  Wms.  531. 


CHAP.  VI.]    ADVANCEMENT  BY  CUSTOM  OF  LONDON.        392 

made  in  satisfaction  of  all  her  demands  out  of  his  personal  estate  by 
the  custom,  or  otherwise,  she  shall  be  barred  also  of  her  share  under 
[393]  the  statute(c):  or  it  may  thus  operate  on  the  evident  though 
only  implied  intention  of  the  parties(^). 

If  the  wife  be  divorced  for  adultery  u  mensd  et  tlioro,  she  for- 
feits her  customary  share(e). 

If  a  freeman  leave  several  children,  the  share  or  the  orphanage 
part  of  any  one  of  them  is  not  vested  in  him  by  the  custom  till  the 
age  of  twenty-one,  after  which  period,  but  not  before,  he  may  dis- 
pose of  it  by  will,  or,  in  case  of  his  dying  intestate,  it  shall  be  dis- 
tributed pursuant  to  the  statute.  If  he  die  under  that  age,  whether 
sole  or  married,  his  share  shall  survive  to  the  others(y") ;  whereas 
the  share  by  tlie  statute  is  vested,  and  therefore  such  child  may  de- 
vise it  at  the  age  of  fourteen,  if  a  son,  and  at  twelve  if  a  daughter(^). 
But  the  survivorship  of  the  orphanage  part  holds  only  as  to  the  or- 
phanage part  belonging  to  the  deceased  himself,  for  if  he  had  by  sur- 
vivorship the  part  of  any  of  his  brothers  or  sisters,  that  shall  go  ac- 
cording to  the  statute(/0.  In  case  there  be  only  one  child,  his 
orphanage  part  is  vested  in  him,  in  the  same  manner  as  his  share  by 
the  statute,  and  is  devisable  by  him  at  the  same  age(/).  If  a  man 
[394]  marry  an  orphan  under  the  age  of  twenty-one,  it  seems  his 
right  is  so  vested  as  to  prevent  his  wife's  share  from  surviving,  in 
case  of  her  death,  before  she  attains  that  age(A;). 

The  children  of  a  freeman  are  entitled  to  the  benefit  of  the  custom, 
although  they  were  born  out  of  the  city(/). 

If  any  of  the  children  are  advanced  to  the  full  extent  of  the  custom 
by  the  father  in  his  lifetime,  they  shall  be  entitled  by  the  custom  to 
no  further  dividend(m).  If  a  freeman  have  several  children,  and 
fully  advance  them  all,  the  custom  in  regard  to  them  is  satisfied, 
and  his  personal  estate,  independent  of  the  widow's  customary  share, 
shall  be  distributed  according  to  the  statute.  If  he  has  only  one 
child,  and  fully  advances  him,  the  consequence  is  the  same(n).  If 
the  children  are  advanced  only  partially,  they  must  bring  their  por- 
tion into  hotchpot  before  they  can  derive  any  advantage  from  the 
custom;  and  in  that  case  their  portion  must  be  so  brought  in  with 
the  other  brothers  and  sisters^  but  not  with  their  mother,  for  the 
princii)le  here  also  is  to  make  an  equality  among  the  children,  and 
not  to  benefit  the  widow(o).     Nor,  where  a  freeman  has  in  part  ad- 

(c)  7  Vin.  Abr.  211.  Benson  v.  Bel-  (/.•)  Fouke  v.  Lewen,  1  Vern.  88. 

lasis,  1  Vern.   15.     4  Burn.  Eccl.  L.  Sed.  vid.  Prec.  Ch.  537. 

404.  Vid.  L.  of  Test.  212, -213.  (/)    L.   of  Test.   202.     Harwood's 

(rf)  L.  of  Test.  212.   L.of  Lond.  102.  case,  1  Vcntr.  180.  S.  C.  1  Mod.  80. 

(e)  Pettifer  v.  James,  Bumb.  IG.  (w)  Cleaver  v.  Spuriing,  2  P.  Wms. 

(/)  2  Bl.  Com.  510.     Wilcocks  v.  527. 

"Wilcocks,  2  Vern.  558.     Jesson  v.  Es-  (h)  L.  of  Test.  206.  221.     Cleaver 

sington,  Prec.  Ch.  207.  537.  v.  Spiirling,  2  P.  Wms.  527.     Good- 

(^r)  Vid.  supr.  8.  win  v.  Ramsden,  I   Vern,  200.     llan- 

(k)  Jesson  V.  Essington,  Free.  Ch.  cock  v.  Hancock,  2  Vern.  GG6.  .  IMed- 

537.  calf  V.  Medcalf,  1  Alk.  04. 

(t)  3  P.  Wms.  318,  note  (q).     Vid.  (o)  L.  of  Tost.  201.  Annand  v.  Ho- 

also  Prec.  Chan.  207.  neywood,  1  Vern.  345.     Beckford  v. 


394  OF  ADVANCRMENT  [bOOK  III. 

vanccd  his  only  child,  shall  such  child  hring  in  his  advancement, 
[395]  for  there  is  none  to  claim  with  him  of  equal  degree(^;).  And 
where  one  of  several  such  children  is  advanced,  his  advancement 
shall  be  in  satisfaction  merely  of  his  orphanage  share,  but  not  of 
his  share  of  the  dead  man's  part,  to  the  whole  of  which  he  sliall  l)e 
entitled,  without  regard  to  what  he  shall  have  received  from  his 
father(^). 

In  case  such  advancement  be  brought  into  hotchpot,  it  must  be 
brought  into  tlie  orphanage  part  only(/'). 

If  the  advancement  shall  have  exceeded  the  child's  share  by  the 
custom,  whether  he  must  bring  in  such  excess  before  he  is  entitled 
to  his  share  of  the  ])art  distributable  by  the  statute,  is  a  point  on 
which  there  are  opposite  opinions.  By  some  writers  it  has  been 
held,  that  he  has  a  claim  to  his  full  share  by  the  statute,  witliout  any 
retrospect  to  his  advancement,  whatever  might  have  been  its  amount. 
By  others  it  has  been  maintained,  that  he  has 'no  right  to  such 
distributive  share,  unless  he  bring  into  the  same  so  much  of  his 
advancement  as  exceeded  his  proportion  of  his  customary  part(5). 
To  reconcile  this  variance,  a  distinction  has  been  suggested  between 
an  advancement  given  and  accepted  expressly  in  satisfaction  of  the 
customary  share,  and  an  advancement  given  generally  without  any 
such  agreement  or  stipulation:  That,  in  the  former  case,  in  the 
distribution  of  the  dead  man's  part,  no  repect  shall  be  had  to  the 
[396]  advancement,  as  it  is  considered  in  the  light  of  a  purchase  by 
the  child,  and  might  have  happened  to  be  less  as  well  as  greater  in 
point  of  value  than  the  customary  part.  But  where  there  is  no 
such  special  contract  or  agreement,  and  the  advancement  is  general, 
it  shall  be  applied  either  to  the  customary  share  only,  or  both  to  the 
customary  and  distriluitive  share,  according  to  the  amount  of  the 
advancement(/). 

As  to  the  nature  of  the  advancement,  whether  complete  or  par- 
tial, it  must  arise  exclusively  from  the  personal  estate.  In  the  cs 
tablishment  of  the  custom  the  citizens  of  London  had  no  regard  to 
real  property,  on  supposition  that  a  freeman  would  not  purchase 
land,  but  would  employ  his  whole  fortune  in  commerce(t^).  If 
therefore  a  citizen  settle  a  real  estate  on  a  child,  it  shall  be  no  ad- 
vancement(zo);  nor,  although  it  be  expressly  for  that  purpo,se,  shall 
it  bar  him  of  his  orphanage  part(.T).     Nor  if  money  be  given  by 

Beckford,  2  Vern.  281.     2  Bl.  Com.  345. 

519.     Bright  v.  Smith,  2  Freem.  279.  (s)   Vid.   4    Burn.    Eccl.   L.   40G. 

1  Eq.  Ca.  Abr.  155.    Cleaver  v.  Spur-  Gudgeon  v.  Ramsden,  2  Vern.  274. 

ling,  2  P.  Wms.  526.   Garron  v.  Trip-  (/)  1  i3urn.  Eccl.  L.  207. 

pet,  Ambl.  189.  (u)  I  Eq.  Ca.  Abr.  150.     Tomkyns 

(p)  Regina  v.  Rogers,  2  Salk.  426.  v.  Ladbroke,  2  Ves.  593. 

Fane  v.  Sence,  2  Vern.   234.     Dean  (w)    1   Ch.    Ca.    160.   235.     L.  of 

V.  Lord  Delaware,  ib.  C28.      Stanton  Test.  194.     Tiffin  v.  Tiffin,  1  Vern.  2. 

V.  Platl,  ib.  754.  Cox.  v.  Belitha,  2  P.  Wms.  274. 

(fy).Hcarne  v.   Barber,  3  Atk.  214.  (x)  2  Ch.  Ca.  160.     Vid.  Civil  v. 

Wood  V.  Briant,  2  Atk.  523.  Rich,  1  Vern.  216." 

(r)  Beckford  v.  Beckford,  1  Vern. 


CHAP.  VI.]        BY  THE  CUSTOM  OF  LONDON.  39G 

the  father  to  be  laid  out  in  land  to  be  settled  on  the  son  on  his  mar- 
riage, shall  it  be  deemed  personal  estate,  nor  any  exclusion(?/). 

What  has  been  already  stated  in  general  cases(z)  respecting  small 
presents  made  to  the  child  by  the  father;  his  disbursements  for 
the  child's  maintenance  and  education,  or  placing  him  out  appren- 
tice(a);  a  legacy  left  him  by  the  father  dying  partially  intestate(6); 
[397]  property  given  him  by  any  other  than  his  father,  as  well  as 
a  fortune  of  the  child's  own  raising,  is  here  equally  applicable. 
He  is  not  by  any  of  these  means  advanced.  For  that  purpose  it 
must  be  a  provision  made  for  him  by  the  father,  while  living,  out 
of  his  personal  property(c).  In  short,  there  must,  in  all  instances 
of  this  nature,  be  a  valuable  consideration  moving  from  the  father, 
and  an  actual  benefit  accruing  to  the  child(f/).  Indeed,  it  has  been 
made  a  question  whether  such  provision  as  shall  amount  to  an  ad- 
vancement should  not  be  made  on  marriage,  or  in  pursuance  of  a 
marriage  agreement(e).  But  it  seems,  the  custom  on  this  head  is 
not  so  restricted,  but  extends  to  any  other  establishment  of  the  child 
in  life(/). 

If  the  child,  whether  the  only  one  or  not,  be  married  in  the  life- 
time of  the  father,  with  his  consent,  although  such  child  were  not 
fully  advanced,  yet,  to  entitle  himself  to  further  portion,  he  must 
produce  a  writing  under  his  father's  hand,  expressing  the  value  of 
the  advancement,  in  order  that  it  may  be  ascertained  what  propor- 
tion it  bore  to  his  share  by  the  custom(^).  If  no  such  writing  be 
produced;  or  if,  on  the  production  of  such  writing,  the  specific 
amount  does  not  appear  on  the  face  of  it,  such  advancement  shall 
[398]  be  presumed  to  have  been  complete,  till  the  contrary  be 
shown(A).  But  mere  parol  declarations  of  the  father,  that  he  had 
fully  advanced  the  child,  whether  with  or  without  a  specification  of 
the  value,  shall  be  of  no  avail (^). 

Thus,  from  what  has  been  stated,  it. appears,  that  if  a  freeman  die 
intestate,  leaving  no  wife,  and  an  only  child,  whether  the  child  be 
fully  advanced  or  partially  advanced,  or  not  advanced;  in  either  of 

(y)  Annand  v.  Honeywood,  1  Vern.  v.  Barber,  3  Adv.  213. 

345.  (/)  L.  of  Test.  201.  Morris  v.  Bur- 

(r)  Vid.  supr.  380.  roughs,  1  Atk.  40.>.     See  also  Nor- 

(a)  Sed  vid.  Morris  v.  Burroughs,  1  they  v.  .Strange,  1  P.  Wms.  312. 

Atk.  403.  (g)  Chace  v.  Box,  Ld.  Ilaym.  484. 

(i)  Vid.  Car  v.  Car,  2  Atk.  227.  1   Eq.  Ca.  Abr.  154.     4  Burn.  Eccl. 

(c)  Laws   of  Lond.  82.     .Tenks  v.  L.   393.   L.  of  Test.  203.     Hume  v. 

Holford,  1  Vern.  01.    4  Burn.  Eccl.  L.  Edwards,  3  Atk.  451,  452.     Elliot  v. 

412.  415.    Vid.  Elliot  v.  Collier,  1.  Collier,  527.     Fawkncr  v.  Watts,  1 

Ves.  17.     Hearne  v.  Barber,  3  Atk.  Atk.  400. 

213.  452.  3  P.  Wms.  317,  note  (o).  (//)  Cleaver  v.  Spurling,  2  P.  Wms. 

Elliot  V.  Collier,  1  Wils.  1G8.  527.     4  Burn.   Eccl.  L.  408,  in  note. 

{d)  L.  of  Test,  204.  .Tenks  v.  Hoi-  Elliot  v.  (Oilier,  3  Atk.  527. 

ford,  1   Vern.  (il.     Fowke  v.   Lewen,  (t)   Vid.  Bhniden    v.  Barker,   1   P. 

89.     Civil  V.    Rich,  21G.     Morris  v.  Wms.    C.34.     Cleaver  v.  Spurling,  2 

Burroughs,    1    Atk.   403.      Elliot    v.  P.  Wms.  527.     Fawkuer  v.  Watts,  1 

Colliitr,  3  Atk.  528.  Atk.  407. 

(e)  1  Vern.  Gl.  89.  Vid.  also  Hearne 


398         ADVANCEMENT  BY  CUSTOM  OF  LONDON.    [bOOK  III. 

the  cases  the  child  was  entitled  to  the  whole  personal  estatc(A').  If 
he  be  fully  advanced,  he  shall  have  nothing  by  the  custom,  but  shall 
have  all  as  next  of  kin:  If  he  be  partially  advanced,  since  he  has 
no  brother  or  sister,  with  whom  to  bring  his  partial  advancement  into 
hotchpot,  he  shall  have  one  half  by  the  custom,  and  tlie  other  half 
by  the  statute:  If  he  be  not  advanced,  he  shall  have  one  half  by  the 
custom,  and  the  other  half  by  the  statutc(/). 

If  the  freeman  leave  no  wife,  but  several  children,  as  for  instance 
three,  one  of  whom  is  advanced,  another  partly  advanced,  and  the 
third  not  advanced;  in  this  case  the  cliild  partly  advanced,  and  the 
child  not  advanced,  after  the  former  has  brought  in  his  partial  ad- 
vancement, shall  sliare  one-half  equally  between  them  by  the  cus- 
tom; and  tlie  other  half,  namely  the  dead  man's  part,  although  the 
first  child  have  been  fully  advanced,  shall,  without  his  bringing  his  ad- 
vancement into  hotchpot,  be  distributed  by  thestatutc  equally  amongst 
them  all. 

[399]  If  such  advancement  exceeded  his  orphanage  part,  then, 
whether  the  excess  shall  go  in  satisfaction  of  his  distributive  share  by 
the  statute,  or  not,  seems  to  depend  on  the  provision  being  expressly 
in  satisfaction  of  the  orphanage  part,  or  whether  it  be  general,  and 
without  any  stipulation(w). 

The  interest  which  a  child  has  in  such  orphanage  part  is  a  mere 
contingency,  and  no  present  right,  and  therefore  a  release  of  it  is  not 
valid  in  point  of  law;  but,  if  founded  on  a  valuable  consideration, 
shall  operate  as  an  agreement,  and  be  binding  in  equity(n).  There- 
fore, a  freeman's  child,  if  of  age,  may  in  consideration  of  a  present 
fortune,  waive  all  claim  to  the  orphanage  part:  as  where  the  father, 
on  the  marriage  of  his  daughter,  who  had  attained  twenty-one  years, 
agreed  to  give  her  three  thousand  pounds,  and  she  covenanted  to 
receive  that  sum  in  full  of  such  share:  this,  as  there  was  no  fraud  in 
the  transaction,  was  held  in  equity  to  be  a  good  bar  of  the  custom(o). 
So,  if  A.,  who  is  of  age,  marry  a  freeman's  daughter,  who  is  an  in- 
fant, he  may,  on  receiving  an  adequate  portion,  bar  himself  of  any 
future  right  to  a  customary  estate  in  virtue  of  the  marriage  by  a  re- 
lease of  all  future  right,  or  by  a  covenant  to  release  it  when  it  shall 
accrue(^).  Indeed,  if  the  latter  mode  be  adopted,  the  wife,  if  under 
age,  would  not  be  barred  by  the  covenant;  and  in  case  of  his  death 
before  the  execution  of  the  release,  she  would  by  [400]  survivorship 
be  entitled  to  the  share  as  a  chose  in  action  not  recovered  or  received 
by  her  husband;  but  if  he  be  living  when  the  right  accrues,  as  he 
clearly  may  release  it,  and  his  release  will  bind  her,  therefore  it  is 
reasonable  he  should  perform  his  covenant.  It  is  highly  expedient 
that  articles  of  this  nature  should  be  carried  into  execution;  and  that, 
when  the  father  is  bountiful  to  his  children  in  his  lifetime,  he  should 

{k)  Vid.  4  Burn.  Eccl.  L.  417.  273. 

(/)  Vid.  4  Burn.  Eccl.  L.  417.  (o)  2  Eq.  Ca.  Abr.  272.     Lockyer 

\m)  Vid.  supr.  395.  v.  Savage,  Stra.  947. 

(«)  Blundeu  v.  Barker,  1  P.  Wms.  (;;)  Cox  v.  Belitha,  2  P.  Wms.  272. 

636.  639.     Cox  v.  Belitha,  2  P.  Wms,  Ives  v.  Medcalf,  1  Atk.  63. 


CHAP.  VI.]     RELEASE  OF  CUSTOMARY  SHARE.  400 

have  his  affairs  settled  to  his  satisfaction  at  his  death(5').  But  such 
release  shall  be  altogether  ineffectual  if  in  any  manner  extorted,  or 
obtained  by  undue  influence(r),  or  without  consideration(s). 

These  points  are  indeed  less  likely  to  occur,  in  consequence  of  the 
authority  given  to  a  freeman  by  the  above-mentioned  stat.  Geo.  1. 
of  disposing  by  will  of  his  whole  personal  estate,  without  regard  to  the 
custom. 


Sect.  III. 
Of  distribution  by  the  custom  of  York — and  of  Wales. 

The  custom  of  York,  as  it  regards  the  widow,  varies  from  that 
of  London  only  in  this  respect,  that  she  is  allowed  to  reserve  to  her 
own  use  not  only  her  apparel  and  furniture  of  her  chamber,  but  also 
[401]  a  coffer  box  containing  various  ornaments  of  her  person,  as 
jewels,  chains,  and  other  articles  of  the  like  nature(a). 

As  relative  to  children,  the  custom  of  York  differs  in  two  material 
points  from  the  custom  of  London.  In  the  city,  as  we  have  seen,  a 
child's  orphanage  part  is  fully  vested  till  he  attains  the  age  of  twenty- 
one.  In  the  province  it  is  vested  immediately  on  the  death  of  the 
intestate(6).  In  the  city,  we  may  remember,  the  advancement  of  a 
child  cannot  arise  out  of  a  real  estate.  In  the  province  the  heir  at 
common  law,  who  inherits  any  land  either  in  fee  or  in  tail,  is  divest- 
ed of  all  claim  to  any  filial  portion(c).  And,  however  small  in  point 
of  value  the  land  may  be  in  comparison  with  the  personal  estate,  he 
is  nevertheless  excluded(c?),  and  even  although  the  estate  he  inherits 
be  only  a  reversion(e).  He  is  also  barred,  though  the  land  devolved 
upon  him  by  settlement  made  on  his  father's  marriage(/).  Nor,  in 
case  lands  held  by  a  mortgage  in  fee  descend  to  him  before  re- 
demption, shall  he  be  entitled  to  a  filial  portion;  but  on  redemption 
of  the  mortgage,  and  payment  of  the  [402]  money  to  the  administra- 
tor, it  seems  he  shall  be  entitled  to  such  portion,  because  then  he  has 
nothing  by  inheritance,  nor  in  fact  has  had  any  prefcrment(^). 

The  principles  established  in  regard  to  advancement  on  the  con- 
struction of  the  statute  of  distributions  apply  in  general  to  such  as  is 
pursuant  to  the  custom  of  this  district(A) ;  but  as  here  land  as  well  as 

(7)  Ibid.  1  Atk.  63.  L.  398. 

(r)  Heron  v.   Heron,  2  Atk.  160.  (c)  2  Burn.  Eccl.  L.  409.     L.  of 

Blunden  v.  Barker,  1  P.  Wms.  639.  Test.  221.     Constable  v.  Constable,  2 

(s)  Ives    V.    Medcalf,   1    Atk.   63.  Vern.375. 

i.Iorris  V.  Burroughs,  402.     Heron  v.         (</)  4B 

Heron,  2  Atk.  101.     Blunden  v.  Bar-  (e)  Ibid.  409,  410, 

ker,  1  P.  Wms.  039.     Cox  v.  Bcli-  (/)  Ibid.  410.     Constable  v,  Con- 

tha,  2  P.  Wms.  273.  stable,  2  Vern.  375. 


Morris  v.  Burroughs,  402.     Heron  v.  (</)  4  Burn.  Eccl.  L.  409. 

eron,  2  Atk.  101.     Blunden  v.  Bar-  (e)  Ibid.  409,  410, 

r,  1  P.  Wms.  039.     Cox  v.  Bcli-  (/)  Ibid.  410.     Constabl 
a,  2  P.  Wms.  273.                                    stable,  2  Vern.  375. 

(a)  Off.  Ex.  Suppl.  61,62.  Swinb.  {i^)  4  Burn.  Eccl.  L.  410. 

p.  6,  s.  9.  Ill)  Vid.  Elliot  v.  Collier,  1  Ves.  17. 
(6)  2  Bl.  Com.  519.     4  Burn.  Eccl. 


402  OF  DISTRIBUTION.  [iJOOK  III. 

money  constitutes  an  advancement,  the  heii'  at  law  under  the  custom 
is  excluded  by  his  inheritance  of  land,  either  in  fee  or  in  tail(/): 
whereas  such  inheritance  is  no  bar  by  the  statute;  but,  as  well  under  the 
custom  as  under  the  statute,  younger  chiklren  in  respect  to  advance- 
ment are  on  the  same  footing.  It  is  essential  in  order  to  the  custom 
of  York's  attaching,  that  the  intestate  should  be  resident,  at  the  time 
of  his  death,  within  the  province;  but  for  that  purpose  it  is  immate- 
rial where  his  estate  is  situated. 

In  case  a  freeman  of  London  shall  die  within  the  province,  the 
custom  of  the  city  for  the  distribution  of  his  effects  shall  prevail,  and 
shall  control  the  custom  of  the  province  of  York.  Therefore  in  tliat 
case  the  heir  shall  come  in  for  a  share  of  the  personal  estate;  for  the 
custom  of  the  province  is  only  local,  and  circumscribed  to  a  certain 
district;  but  that  of  London,  as  above  stated,  follows  the  person,  al- 
though ever  so  remote  from  the  city(/i;). 

[403]  With  these  distinctions  the  custom  of  London  and  those  of 
York  in  the  main  agree,  and  appear  to  be  substantially  the  same(/). 

Thus,  if  an  intestate  in  the  province  of  York  die  seised  of  an  es- 
tate in  fee-simple,  leaving  a  widow  and  three  sons;  the  widow  in  that 
case  shall  have  one-third  of  the  whole  personal  estate  under  the  cus- 
tom, the  other  third  shall  be  divided  equally  between  the  two 
younger  sons,  and  of  the  remaining  third  the  widow  shall  take  one- 
third  under  the  statute,  and  the  other  two-thirds  shall  be  divided 
equally  among  the  three  sons;  for  the  heir  is  barred  merely  of  his 
orphanage  part,  but  not  of  his  share  by  the  statute. 

In  respect  to  Wales(wi),  we  may  learn  in  general  from  the  stat.  7 
and  8  W.  3.  c.  38,  above  referred  to(?i),  that  the  doctrine  of  the  7;«r5 
rationabilis  extend  to  intestates'  effects  within  that  principality;  but 
the  books  contain  no  further  information  on  the  subject. 

(i)  Constable  v.  Constable,  2  Vern.  255.  L.  of  Test.  221,  222.     Swinb.  p. 

375.  3,  s.  16.     4  Burn.  Eccl.  L.  398,  et 

{k)  4  Burn.  Eccl.  L.  416.     Chom-  seq. 

ley  V.  Choraley,  2  Vern.  47.  82.  Supr.  ("0  4   Burn.   Eccl.   L.   424.     OIF 

391.  Ex.  97,  in  note.  Ibid.  Suppl.  72. 

(/)  2  Bl.  Com.  519.     1  Vern.  15.  {li)  Supr.  388. 
134.  200.  305.  432.  465.     2  Ch.  Rep. 


CHAP.  VII.]  OF  LIMITED  ADMINISTRATORS.  404 


CHAPTER  VII. 


OF  THE  POWERS  AND  DUTIES  OF  LIMITED  ADMINISTRATORS OF 

JOINT    ADMINISTRATORS. 

There  are  certain  powers  and  duties  which  belong  in  common  to 
all  special  and  limited  administrators.  Whether  the  administration 
be  committed  durcmie  minoritate,  durante  abse7itid,ov  peiidente 
lite,  or  whether  such  special  and  limited  administration  be  granted 
with  or  without  a  will  annexed,  or  in  a  general  or  restrictive  form 
only,  as  ad  usum  et  coinmodum  infantis;  they  are  all  invested  in 
some  respects  with  the  same  authority(«).  They  may  perform  all 
such  acts  as  cannot  be  delayed  without  prejudice  or  danger  to  the  es- 
tate. They  may  sell  bona  peritura,  cattle  which  are  fattened,  grain, 
fruit,  or  any  other  substance  which  may  be  the  worse  for  keeping(6): 
They  may  pay  debts  which  were  due  from  the  deceased  at  the  time 
of  his  death(c),  or  for  the  payment  of  them  they  may  dispose  of  ef- 
fects not  perishable(^).  They  may  also  in  [405]  such  respective 
characters  receive  debts  due  to  the  deceased  (e),  or  may  maintain  actions 
for  the  recovery  of  the  same(/):  for,  in  all  these  and  the  like  instan- 
ces, the  urgency  of  the  case  requires  them  immediately  to  act. 
They  have  also,  it  seems,  the  privilege  of  retaining  for  debts  owing 
to  themselves(^). 

If  administration  be  granted  generally  during  infancy,  the  grantee 
has  authority  to  make  leases  of  any  term  vested  in  the  infant  execu- 
tor, which  shall  be  good  till  he  come  of  age,  and,  as  it  has  been  also 
held,  till  he  enter(/i).  Such  administrator  has  also,  it  seems,  a  right, 
in  case  the  administration  were  granted  with  the  will  annexed,  to  as- 
sent to  a  legacy(2).  But  if  the  administration  were  committed  with 
special  words  of  restraint  in  the  form  I  have  just  mentioned,  such  ad- 
ministrator is  incapable  of  making  leases(Ar),  or  of  assenting  to  a  le- 
gacy(/).     Nor  shall  the  power  of  an  administrator  during  infancy, 

(a)  Walker    v.    Woolaston,    2  P.  3  Leon.  103. 

Wms.  576.  (/)    Walker  v.    Woolaston,  2  P. 

(i)  3  Bac.  Abr.  13.     11  Vin.  Abr.  Wms.  57G.     1  Roll.  Abr.  888.     Bear- 

102,  103.     1  Roll.  Abr.  910.     Anon,  block  v.  Read,  2  Brownl.  83.  Slaugh- 

3  Leon.  278.     2  Anders.  132,  pi.  78.  ter  v.  May,  1  Salk.  42.     Ball  v.  Oli- 

Price  V.  Simpson,  Cro.  Eliz.  718.     5  ver,  2  Ves.  and  Bea.  97. 

Co.  9.     Godb.  101.  (ic)  Com.  Dig.  Admon.  F.  Semb. 

(c)  Com.    Dig.    Admon.    F.   Vid.  Raym.  483, 

Briers  V.  Goddard,  Hob.  250.     5  Co.  (/*)  6  Co.  67  b.     Off.  Ex.  215. 

29  b.  (/)  Off.  Ex.  215.     5  Co.  29  b. 

(rf)  5  Co.  29  b.     2  Anders.  132,  pi.  {it)  6  Co.  67  b.     Off.  Ex.  215. 

78.  (/)  Off.  Ex.215. 

(e)  Cum.  Dig.  Admon.  F.  Vid.  Anon. 
35 


405  OF  LIMITED  ADMINISTRATORS.  [bOOK  III. 

although  the  grant  were  general,  extend  to  the  prejudice  of  the  in- 
fant. Therefore  such  administrator  has  no  authority  to  transfer  the 
property  by  sale,  except  in  cases  of  necessity;  nor  to  sell  leases  even 
for  the  payment  of  debts,  if  there  be  [406]  other  property  which  he 
may  dispose  of  to  more  advantagc(7?z);  nor  to  assent  to  a  legacy, 
unless  there  be  assets  for  its  payment(?i);  nor  to  release  a  debt  with- 
out actually  receiving  it(o):    for  although,  as  we  may  remember,  if 

A.  an  infant  be  appointed  executor,  and  13.  be  nominated  to  act  in 
that  character  during  A.'s  minority,  B.  seems  to  be  possessed  of  the 
same  powers  as  an  absolute  cxecutor(  jy);  yet  a  distinction  has  been 
taken  between  him  and  an  administrator  durante  minoritate.     To 

B.  the  property  in  the  effects  was  confided  by  the  owner  himself, 
though  but  for  a  limited  time,  and  in  a  special  manner;  whereas  such 
administrator  is  appointed  by  the  ordinary  in  consequence  of  the  legal 
disability  of  the  executor,  who  by  the  will  is  constituted  to  act  im- 
mediately(9).  Such  acts,  therefore,  as  are  performed  by  such  ad- 
ministrator to  the  injury  of  the  infant,  shall  be  altogether  ineffectual. 

By  the  stat.  38  Geo.  3.  c.  87,  s.  7,  an  administrator  durante  ab- 
sentia has  the  same  power  vested  in  him  as  an  administrator  during 
the  minority  of  the  next  of  kin. 

An  administrator  pendente  lite,  whether  the  suit  relates  to  a  will 
or  the  right  of  administration,  seems  to  be  on  the  same  footing  as 
an  administrator  during  infancy,  to  whom  the  grant  is  made  in  the 
[407]  special  and  limited  manner  above  mentioned(r). 

On  an  infant  executor's  coming  of  age,  he  may  sue  out  a  scire  fa- 
cias on  a  judgment  recovered  by  the  administrator  durante  mino- 
ritate. In  like  manner,  in  case  an  administrator,  pendente  lite 
touching  a  will,  obtain  such  judgment,  the  executor,  on  proving  the 
will,  by  which  the  administration  will  be  determined,  may  take  ad- 
vantage of  the  judgment  by  scire  facias{s). 

If  an  action  be  brought  against  a  special  administrator,  and,  pend- 
ing the  action,  the  administration  determine,  it  has  been  held,  he 
ought  to  retain  assets  to  satisfy  the  debt,  which  is  attached  on  him  by 
the  action(^);  but  that  is  on  the  supposition  the  action  does  not  in  that 
eventabate;  whereas  it  seems  such  would  be  the  consequence(w).(l) 
If  judgment  be  obtained  against  such  administrator,  and  afterwards 
the  executor  come  of  age,  a  scire  facias  will  clearly  lie  against  the 
executor  on  the  judgment(^/;). 

(to)  2  Anders.  132,  pi.  78.  (s)  lb.  2  P.  Wms.  587. 
(n)  5  Co.  29  b.  (0   3   Bac.  Abr.    14.      Sparks   v. 
(o)  1  Roll.  Abr.  910,  911.  Crofts,  Comb.  465. 
(p)  Vid.  siipr.  357.  (w)  H  Vin,  Abr.  97.     Ford  v.  Glan- 
ce) Off.    Ex.   215,   216.     11    Vin.  ville,  Moore,  462.    Goldsb.    13  Lutw. 

Abr.  103.  342. 

(r)  Vid.  3  Bac.  Abr.  56.     11  Vin.  (w)  Sparks  v.  Crofts,  Ld.  Raym. 

Abr.  106.     Walker  v.  Woolaston,  2  265.     S.  C.  Carth.  432. 

P.  Wms.  576,  and  supr.  74. 


(1)  The  State  use,  &c.  v.  Craddock,  7  Harr.  &  Johns.  40. 


CHAP.  VII.]  OF  JOINT  ADMINISTRATORS.  407 

Of  co-executors,  we  have  seen(.r),  the  acts  of  any  one  in  respect 
to  the  administration  of  the  effects  are  deemed  by  the  law  to  be  the 
acts  of  all,  inasmuch  as  they  have  a  joint  and  entire  authority  over 
the  whole  property  ;  but  joint  administrators  have  been  considered 
in  a  different  light.  Their  power  arises  not  from  the  act  of  the  de- 
ceased, but  from  that  of  the  ordinary  ;  and  administration,  it  has  been 
already  stated(y),  is  in  the  nature  of  an  office.  Hence  it  has  been 
held,  that  if  granted  to  several  persons,  they  must  all  join  in  the  exe- 
cution of  it,  nor  shall  the  act  of  one  only  be  binding  on  the  rest, 
and  that  therefore  one  of  several  administrators  [408]  cannot,  like 
one  of  several  co-executors,  convey  an  interest,  or  release  a  debt, 
Avithout  the  others(z).  But  this  distinction  has  been  overruled, 
and  it  seems  to  be  now  settled  that  a  joint  administrator  stands  on 
the  same  footing,  and  is  invested  with  the  same  powers,  as  a  co-execu- 
tor(a).(l) 

If  one  of  the  administrators  die,  the  right  of  administering  will 
survive  without  a  nevv  grant(/^). 

By  the  stat  38  Geo.  3.  c.  87,  s.  4,  in  case  of  the  absence  of  an 
executor  for  a  year  after  the  testator's  death  out  of  the  jurisdiction 
of  his  majesty's  courts,  and  a  suit  be  instituted  in  a  court  of  equity 
by  a  creditor,  the  court  in  which  the  suit  shall  be  pending  is  empow- 
ered to  appoint  persons  to  collect  outstanding  debts  or  effects  due 
to  the  testator's  estate,  and  to  give  discharges  for  the  same,  who  are 
to  give  security  in  the  usual  manner  duly  to  account. 

{x)  Supr.  359.  (a)  Jacomb  v.  Harwoocl,2  Ves.  267. 

ly)  Supr.  114.  Willand  v,  Fenn,  in  B.  R.  cited  ibid. 

{z)  4  Burn.  Eccl.  L.  272.  Ld.  Ba-  (b)  Adams   v.    Buckland,  2  Vern. 

con's  Tracts,  162.  Hudson  v.  Hudson,  514.  Eyre  v.  Countess  of  Sbaftsbury, 

1  Atk.  460.  2  P.  Wms.  121.  Supr.  114. 


{I)  jyiurray  V.  Slatchford,  1  Wend.  Rep.  583.     Gage  \.  Johnson'' s  JIdm.   1  M'Cord's 
Rep.  492. 


409  REAL  AND  PERSONAL  ASSETS.  [bOOK  III. 


CHAPTER  VIII. 


OF  ASSETS  AS  DISTINGUISHED  INTO  REAL  AND  PERSONAL,  LEGAL 
AND  EQUITABLE OP  MARSHALLING  ASSETS. 

In  treating  of  debts  and  legacies,  I  have  hitherto  supposed  them 
to  be  payable  out  of  the  personal  estate  only,  and  indeed  that  is  the 
natural  fund  for  their  satisfaction;  but  the  real  property  may  also  be 
applied  to  the  same  purpose. 

On  the  subject  of  such  application,  it  is  necessary  to  consider  assets 
under  different  denominations.  Assets,  then,  are  either  real  or  per- 
sonal, legal  or  equitable(a). 

Those  of  which  I  have  been  treating  are  legal  and  personal. 

I  proceed  now  to  advert  to  such  as  are  legal  and  real.  Lands  de- 
scended to  the  heir  in  fee-simple  are  for  the  benefit  of  speciality 
creditors  of  this  description;  as  is  even  an  avowson  which  is  so  de- 
scended(6). 

These  assets  are  sometimes  styled  assets  by  descent,  as  personal 
[410]  assets  are  called  assets  e;i/er  7nains,  that  is,  in  the  hands  of 
the  executor(c). 

Whether  an  estate /;wr  auter  vie,  in  case  it  be  not  devised,  shall 
be  real  or  personal  assets,  depends  on  there  being  or  not  being  a  spe- 
cial occupant.  The  statute  of  frauds  enables  the  proprietor  of  such 
estate  to  devise  it,  and  enacts  that,  if  no  devise  be  made,  it  shall  be 
chargeable  in  the  hand  of  the  heir,  if  it  come  to  him  by  reason  of  a 
special  occupancy,  as  assets  by  descent,  as  in  the  case  of  lands  in  fee- 
simple.  And  if  there  be  no  special  occupant,  it  shall  go  to  the  ex- 
ecutor, and  be  assets  in  his  hands(c(). 

A  term  in  gross  is,  as  we  have  seen,  personal  assets(e).  But  if 
the  term  be  vested  in  a  trustee,  and  attendant  on  the  inheritance,  it 
is  real  assets(/).  So  a  term  in  trust,  attendant  on  a  fee  in  trust, 
shall  be  real  assets  in  the  hands  of  the  heir;  for  the  statute  of  frauds 
having  made  a  trust  in  fee  assets  in  the  hands  of  the  heir,  the  term 
which  follows  the  inheritance,  and  which  is  subject  to  all  charges 
attending  the  inheritance,  must  be  so  also(^).  But  we  have  seen, 
that,  general  speaking,  the  trust  of  a  term  is  not  made  assets  by  that 
statute(A). 

(a)  Vid.  4  Burn.  Eccl.  L.  288.  Milnerv.  Lord  Harewood,  18  Ves.273. 

(6)  3  Wooddes.  483.     Robinson  v.  (e)  Supr.  140. 

Tonge,  3  P.  Wms.  401.  (/)  2  Fonbl.  2d  edit.  114,  note  R. 

(c)  Terms  of  the  Law,  Shep.  Touch.  Vid.  supr.  5  and  137. 
496.  ig)  2  Fonbl.  2d  edit.  114,  note  S. 

{(1)  2  Fonbl.  2d  edit.  896,  not.  R.  b.  Herd.  489.  Willoughby  v.  Willougby, 

Westfaling  v.  Westfaling,  3  Atk.  466.  1  Term  Rep.  766. 
Atkinson  v.  Baker,  4  Term  Rep.  229.  {h)  Supr.  143. 


CHAP.  VIII.]  REAL  AND  PERSONAL  ASSETS.  411 

[411]  Creditors  by  specialties,  which  affected  the  heir,  provided 
he  had  assets  by  descent,  had  not  the  same  remedy  against  the  de- 
visee of  their  debtor,  and  were  therefore  liable  to  be  defrauded  of 
their  securities.  To  obviate  this  mischief(z),  the  stat.  3  TF.  and 
M.  c.  14,  has  enacted,  that  all  devises  of  real  estates  by  tenants  in 
fee-simple,  or  having  power  to  dispose  by  will,  shall,  as  against  such 
creditors,  be  deemed  to  be  fraudulent  and  void;  and  that  they  may 
maintain  their  actions  jointly  against  the  heir  and  devisee.  But 
devises  for  payment  of  debts,  and  for  raising  portions  for  younger 
children,  in  pursuance  of  an  agreement  before  marriage,  are  ex- 
pressly excepted  by  the  statute(^).  And  thus  freehold  interests 
devised  for  other  than  the  just  purposes  aforesaid,  are  become,  in 
favour  of  specialty  creditors,  real  assets  at  law,  without  the  assist- 
ance of  a  court  of  equity:  in  respect  to  which  such  creditors  may 
elect  to  resort  in  the  first  instance  against  the  heir  and  devisee,  with- 
out suing  the  personal  representative  of  their  deceased  debtor(/). 
If  such  creditor  file  a  bill  in  equity  on  the  statute  to  affect  the  real 
assets  in  the  hands  of  the  devisee,  the  heir  must  be  made  a  party  to 
the  suit;  for  a  bill  in  equity  for  that  purpose  is  in  the  nature  of  an 
action  at  law;  and  as  the  action  by  express  provision  of  the  statute 
is  to  be  brought  jointly  against  the  heir  and  devisee,  so  the  bill  must 
be  filed  against  them  both(m);  though  in  such  case  the  heir  or  de- 
visee shall  have  this  relief — namely,  to  stand  in  the  place  of  the  spe- 
cialty creditor,  and  reimburse  himself  out  of  the  personal  estate(7z).(l) 

It  seems  that  an  estate  pur  aider  vie,  although  no  special  occupant 
were  named,  would,  in  case  it  were  devised,  be  considered  as  real 
assets(o). 

But  copyhold  estates  are  not  assets  in  the  hands  of  the  heir(jo), 
[412]  and  consequently  are  not  comprehended  within  the  provisions 
of  this  statute. 

Between  legal  and  equitable  assets  the  distinction  is  this:  legal 
assets  are  such  as  constitute  the  fund  for  the  payment  of  debts  accord- 
ing to  their  legal  priority;  whereas  equitable  assets  are  those  which 
can  be  reached  only  by  the  aid  of  a  court  of  equity,(2)  and  are  sub- 

(i)  Vid.  2  Bl.  Com.  378.  3  P.  Wms.  333.      Vid.  Manaton  v. 

\k)  Vid.  2  Atk.  104.  292.     P]arl  of  Manaton,  2  P.  Wms.  234. 

Bath  V.  Karl  of  Bradford,  2  Ves.  590.  (m)  Gawler  v.  Wade,  1  P.  Wms. 

Lingard  v.  Earl  of  Derby,  1  Bro.  Ch.  99. 

Rep.  311.    Hughes  v.  Doulbcn,  2  Bro.  («)  Clifton  v.  Burt,  1  P.  Wms.  680. 

Ch.  Rep.  G14.     Com.  Dig.  Assets  A.  (o)  Vid.  2  Fonbl.  2d  edit.  39G,  note 

(/)   3   Wooddes.  486.      Warren  v.  b. 

Statwell,  2  Atk.  125.     Madox  v.  .lack-  {p)  4  Co.  22.     Robinson  v.  Tonge, 

son,  3  Atk.  406.     Knight  v.  Knight,  cited  1  P.  Wms.  679,  note  1. 


(1)  In  Pennsylvania,  when  a  suit  is  brouglit  af!;ainst  executors,  the  heirs  of  the  testator, 
to  whom  land  has  descended,  have  a  right  to  appear  and  take  defence  iu  the  name  of  the 
executors,  and  thus  protect  their  interest  in  the.  hmds,  which  are  assets  for  the  p!iym<;nt 
of  debts.     Fritz,  Ex.  v.  Kvam,  Jdm.  13  Sers;.  k;  Rawle,  1. 

(2)  Rutledse  v.  Jtuttedge'a  Creditors,  I  M 'Cord's  Cha.  Rep.  4G'J, 


412  LEGAL  AND  EQUITABLE  ASSETS.  [bOOK  III. 

ject  to  distribution  on  equitable  principles,  according  to  which,  as 
equity  fiivours  equality,  they  are  to  be  divided  pari  pas3u  among 
all  the  creditors(y). 

By  the  stat.  21  7/8.  c.  5,  ,9.  5,  it  is  enacted,  that  if  lands  are  de- 
vised to  be  sold,  neither  the  money  produced  by  the  sale,  nor  the 
future  profits  of  the  land,  shall  be  considered  as  forming  any  part  of 
the  personal  estate  of  the  devisor.  But  this  provision  was  formerly 
construed  to  apply  merely  to  devises  of  lands  to  be  sold  by  persons 
not  executors,  or  by  executors  in  conjunction  with  other  persons;  in 
which  cases  it  was  held,  that  neither  the  land  nor  the  money  was  to 
be  regarded  as  legal  assets,  but  merely  subject  to  an  equitable  ap- 
pointment, inasmuch  as  the  parties  empowered  to  sell  were  not 
trusted  with  it  in  respect  of  their  executorship(r). 

[413]  That  in  case  lands  were  devised  to  an  executor,  to  be  sold 
by  him  in  that  capacity  for  the  payment  of  debts  and  legacies,  the 
money  arising  from  the  sale  should  be  legal  assets  as  well  as  the  in- 
termediate profits;  for  that  by  the  devise  the  descent  was  broken, 
and  the  estate  in  the  land  vested  in  the  executor,  qua  executor  for 
the  purposes  directed  by  the  will(.?).(l) 

But  the  doctrine  of  equitable  assets,  in  its  principle  so  consonant 
to  natural  justice,  has  been  gradually  extended;  and  this  distinction 
between  a  devise  to  a  trustee  and  to  an  executor  has  been  continually 
qualified,  till  at  length  it  appears  to  be  altogether  abolished. 

In  one  class  of  cases,  both  of  an  earlier  and  of  a  later  date,  courts  of 
equity  recognizing  the  union  of  the  two  characters  of  trustee  and 
executor  in  the  devisee,  regarded  on  that  ground  the  real  estate  as 
merely  a  trust  fund,  and  distributable  among  all  the  creditors  equal- 
ly(/).  And  other  cases  considered  it  in  the  same  light,  althougli  the 
devise  were  not  to  the  executor  expressly  on  trust,  if,  according  to 
the  sound  construction  of  the  will,  he  might  be  converted  into  a 
trustee;  as  if  the  devise  were  to  him  and  his  heirs:  since  the  money 
could  never  be  legal  assets  in  the  hands  of  his  heir;  nor,  as  against 
[414]  such  heir,  could  an  action  be  maintained  by  a  creditor(w). 

(7)  3  Bac.  Abr.  59,  in  note.  2  Fonbl.  (s)  3  Bac.  Abr.  58.     1  Roll.  Abr. 

402,  note  (d).     4  Burn.  Eccl.  L.  288.  920.     Harg.  Co.  Litt.  236. 

3  Wooddes.  486.     2   P.  Wms.  416,  (/)  2  P.  Wms.416,note2.   2  Fonbl. 

note  2.  402,403.    Anon.2  Vern.  133.    Challis 

{r)  3  Bac.  Abr.  58.  Roll.  Abr.  920.  v.  Casborne,  Prec.  Chan.  408.  Cham- 
Edwards  V.  Graves,  Hob.  265.  Dyer,  bers  v.  Harvest,  Mose.  123.  Anon.  328. 
151  b.  264  b.  Girling-  v.  Lee,  1  Vern.  Levvin  v.  Okeley,  2  Atk.  50.  Batson 
63.  Anon.  2  Vern.  405.  4  Burn.  Eccl.  v.  Lindegreen,  2  Bro.  Ch.  Rep.  94. 
L.  260.  11  Vin.  Abr.  291.  Cutter-  (?<)  1  Bro.  Ch.  Rep.  Append.  7.  1 
back  v.  Smith,  Prec.  Chan.  127.  Sed.  Bro.  Ch.  Rep.  Newton  v.  Bennett, 
vid.  Off.  Ex.  74,  75.  135.  138,  in  note. 


(1)  Testator  orders  his  executors,  after  the  death  of  his  widow,  to  sell  his  real  and  per- 
sonal estate,  and  divide  the  money  equally  among  his  four  children.  On  a  sale  of  the 
land  made  by  an  administrator  de  bonis  no?i,  after  the  deatli  of  the  widow,  such  adminis- 
trator is  entitled  to  receive  the  money,  and  not  a  creditor  wlio  had  ohtained  judgment 
against  one  of  the  children  before  a  sale.  Allison,  Ex.  v.  JVikon's  Ex.  13  Serg.  &  Rawie, 
330. 


CHAP.  VIII.]  LEGAL  AND  EQUITABLE  ASSETS.  414 

According  to  other  decisions,  if  the  executor  had  only  a  naked 
power  to  sell  in  the  capacity  of  executor,  the  lands  descended  in  the 
meantime  to  the  heir  of  the  devisor,  and  till  the  sale,  he  might  enter 
and  take  the  prolits(w);(l)  and  the  money  arising  from  such  sale 
was  held  to  be  assets  at  law(ar). 

But  by  modern  adjudications  it  seems  to  be  established  that  a  de- 
vise to  a  mere  executor  shall  bear  the  same  construction  as  a  devise 
to  a  trustee;  that  there  is  no  reason  to  suppose  the  testator's  mean 
ing  to  be  different  in  the  one  instance  from  that  in  the  other;  and 
that,  even  in  the  case  of  a  mere  power  on  the  part  of  the  executor  to 
sell,  the  descent  seems  to  be  broken,  inasmuch  as  the  vendee  is  in 
by  the  devisor;  but  that,  whether  the  descent  in  such  case  be  broken 
or  not,  the  assets  shall  be  equally  equitable:  in  short,  that  if  the  real 
estate  be  by  any  means  given  to  the  executor,  the  produce  of  it,  when 
sold,  shall  not  be  applied  in  a  course  of  legal  administration,  but  be 
distributed  as  equity  prescribes(y).(2) 

And  although  it  has  been  held  that  where  the  estate  descends  to 
[415]  the  heir  charged  with  the  payment  of  debts,  it  will  be  legal 
assets  in  him(z);  yet  now  it  is  settled  that  in  this  instance  also  the 
assets  shall  be  deemed  to  be  equitable(«). 

But  such  assets  as  are  clearly  legal  shall  not  assume,  by  being  re- 
coverable only  in  equity,  an  equitable  nature.  Hence  if  a  mere 
trust  estate  descend  on  the  heir  at  law,  notwithstanding  a  necessity 
of  resorting  to  equity  to  reduce  it  into  possession,  yet  it  shall  be  le- 
gal assets,  since  a  trust  estate  is  made  assets  by  the  statute  of  frauds. 
And  although  an  equity  of  redemption  of  a  mortgage  in  fee,  not  be- 
ing made  assets  by  any  legislative  provision,  has  been  considered  as 
merely  an  equitable  interest,  and  has  been  expressly  adjudged  to  be 
equitable  assets(6);(3)  yet  there  are  strong  opinions  to  the  contrary, 

(w)  Co.  Litt.  236.  2  P.  Wms.  416,  note  2. 

(x)  Newton  v.  Bennett,  1  Bro.  Ch.  («)  2  Fonbl.  2d  edit.  398,  in  note. 

Rep.  135.  138,  in  note.     See  Tomlin-  1  Bro.  Ch.  Rep.  Append.  6.     Batson 

son  V.  Dighton,  1  P.  Wms.  151.  v.  Lindegreen,  2  Bro.  Ch.  Rep.  94. 

(j/)  Newton  v.  Bennett,  1  Bro.  Ch.  Shiphard  v.  Lutwidge,  8  Ves.  jun.  26. 

Rep.  137,  138.     2  Fonbl.  2d  edit.  398,  (b)  Wilson  v.  Fielding,  2  Vern.  764. 

in  note.     Vide  Harg.  Co.  Litt.   113,  Plunket  v.  Penson,  2  Atk.  294.     Deg 

note  2,  and  Walker  v.  Meager,  2  P.  v.  Deg.  2  P.  Wms.  416.     Cox's  case, 

Wms.  552.  3  P.  Wms.  342.     Hartwell  v.  Chit- 

(2)  Freemoult  V.  Dedire,  1  P.  Wms.  ters,  Ambl.  308.     3  Bac.  Abr.  59,  in 

430.     Plunket  v.  Penson,  2  Atk.  290.  note. 


(1)  In  Pennsylvania,  under  the  provisions  of  the  act  of  31st  March,  1792  (Purd.  Dig. 
277.  3  Sm.  Laws,  C7),  the  executors,  where  a  naked  power  to  sell  is  given  to  tlieni,  take 
tlie  legal  estate,  and  nothing  descends,  unless  the  contrary  is  specially  directed  by  the 
testator.    Allismi,  Ex.  v.  WikoivH  Ex.  13  Serg.  &.  Kawie,  332. 

(2)  JVimmo''8  Ex.  v.  The  Commonwealth,  4  lien.  8t  Munf.  47.  Bejison  v.  Le  Roy,  3 
Johns.  Cha.  Rep.  651. 

(3)  The  administrator  of  a  mortgagor  is  not,  as  such,  entitled  to  the  surplus  moneys 
arising  from  the  sale  of  the  mortgaged  premises;  but  it  is  considered  as  part  of  the  real 
estate,  and  goes  to  the  heirs,  and  will  be  assets  in  their  hands;  and  the  heirs  being  before 


415  LEGAL  AND  EQ.U1TABLE  ASSETS.  [bOOK  III. 

and  that  an  equity  of  redemption,  even  in  fee,  though  capable  of 
being  reached  only  in  equity,  shall  be  classed  among  assets  at  law. 
And  although,  from  the  same  inclination  of  extending  the  ideas  of 
equitable  assets,  it  has  been  also  held  that  if  any  termor  for  years 
mortgage  his  term,  the  equity  of  redemption  shall  be  of  that  descrip- 
tion of  assets(c);  still,  according  to  a  variety  of  antecedent  cases, 
such  chattels,  whether  real  or  personal,  as  [416]  are  mortgaged  or 
pledged  by  the  testator,  and  redeemed  by  the  executor,  although  ca- 
pable of  being  recovered  only  in  equity,  shall  be  assets  at  law  in  the 
hands  of  the  executor  for  the  value  beyond  the  sum  paid  for  the  re- 
demption(c?). 

Lands  may  be  devised  to  an  executor  to  be  sold  by  him  for  the 
payment  of  debts  only,  and  then  they  shall  be  assets  merely  for 
that  purpose.  And  so  the  devise  may  be  expressed  to  be  for  the 
payment  of  legacies,  and  not  of  debts;  and  then  it  shall  be  restricted 
to  the  former.  For  since  the  lands  are  not  in  their  own  nature 
assets,  but  constituted  so  by  the  will  and  disposition  of  the  devisor, 
they  shall  not  be  assets  to  a  greater  extent  than  he  has  thought  fit  to 
direct(e). 

But  in  either  of  thes^e  cases,  as  I  shall  presently  show,  the  assets 
may  be  marshalled. 

Where  money  by  a  marriage  agreement  is  articled  to  be  invested 
in  land  and  settled,  such  fund  should  be  bound  by  the  articles,  and 
not  be  assets,  either  at  law  or  in  equity,  for  payment  of  debts(/). 

An  estate  in  fee  on  our  American  plantations  is  subject  to  debts, 
and  considered  as  a  chattel  till  the  creditors  are  satisfied,  when  the 
lands  shall  descend  to  the  hcir(5-). 

By  the  stat.  47  G.  3.  s.  2,  c.  74,  it  is  enacted  that  a  trader  dying 
seised  of,  or  entitled  to,  any  estate,  or  interest  in  lands,  tenements, 
hereditaments,  or  other  real  estate,  which  before  the  passing  of  the 
act  would  have  been  assets  for  the  payment  of  his  debts  due  on  any 
specialty  in  which  the  heirs  were  bound,  the  same  should  be  assets  to 
be  administered  in  courts  of  equity,  for  the  payment  of  all  just  debts 
of  such  person,  as  well  debts  due  on  simple  contract,  as  on  specialty; 
but  specialty  debts  are  to  be  first  paid(A). 

(c)    Cox's  case,  3  P.  Wms.   342.  3  P.  Wms.  217. 

Hartwell  v.  Chitters,  Ambl.  308.  (^g)  11  Vin.  Abr.  223.     Noel  v.  Ro- 

(£?)3Bac.  Abr.  59,  innote.   1  Leon,  binson,   2   Ventr.   358.     Blankard  v. 

155.     Harcourt  v.  Wrenham,  Moore,  Galdy,  4  Mod.  226.    4  Burn.  Eccl. 

858.     1  Roll.  Rep.  158.     Harcourt  v.  L.  195.     Manning  v.  Spooner,  3  Ves. 

Wrenham,  1  Brownl.  76.     Plunket  v.  jun.  118. 

Penson,  2  Atk.  291.  (/,)  The  above  stat.  applies  only  to 

(e)  Off.  Ex.  74.  persons  who  were  traders  at  the  time  of 

(/)  Lechmere  v.  Earl  of  Carlisle,  their  decease;  and  not  to  persons  who 

the  court  by  their  parent,  it  vas  ordered  to  be  distributed,  as  equitable  assets,  among  all 
the  creditors  pari  passv.  But  as  the  creditor  has  a  remedy  at  law,  in  New  York,  against 
an  equity  of  redemption,  it  is  questionable,  whether  before  a  sale  of  the  mortgaged  pre- 
mises it  could  be  deemed  equitable  assets.   Moses  v.  Murgatroyd,  1  Johns.  Cha.  Rep.  119. 


CHAP.  VIII.]  LEGAL  AND  EQUITABLE  ASSETS.  417 

[417]  By  the  stat.  5  G.  2.  c.  7.  §  4,  it  is  enacted,  that  houses,  land, 
negroes,  and  other  hereditaments,  and  real  estates  situate  within  any 
of  the  British  plantations  in  America  helonging  to  any  person  in- 
debted, shall  be  liable  to  and  chargeable  with  all  just  debts,  duties, 
and  demands,  of  what  nature  or  kind  soever,  owing  by  any  such  per- 
son to  his  Majesty,  or  any  of  his  subjects,  and  shall  be  assets  for  the 
satisfaction  thereof  in  like  manner  as  real  estates  are  liable  to  the 
satisfaction  of  debts  due  by  bond  or  other  specialty,  and  shall  be  sub- 
ject to  the  like  remedies,  proceedings,  and  process  inany  court  of  law 
or  equity  inany  of  suchpLintations  respectively,  forseizing,extending, 
selling,  or  disposing  of  any  such  houses,  land,  negroes,  and  other  he- 
reditaments and  real  estates,  towards  the  satisfaction  of  any  such 
debts,  duties,  and  demands,  and  in  like  manner  as  personal  estates  in 
any  of  the  said  plantations  respectively  are  seized,  extended,  sold,  or 
disposed  of  for  the  satisfaction  of  del)ts.(l) 

The  marshalling  of  assets  remains  now  to  be  considered. 

The  personal  assets  of  the  testator  shall  in  all  cases  be  primarily 
applied  in  discharge  of  his  personal  debts  or  general  legacies,  unless 
he  exempt  them  by  express  words  or  manifest  intention(i);  a  decla- 
ration plain,  or  necessary  inference,  tantamount  to  express  words(A:). 

[418]  A  devise  of  all  the  real  estate  subject  to  the  payment  of 
debts,  will  not  alone  exonerate  the  personal  estate;  and  even  if  the 
testator  direct  the  real  estate  to  be  sold  for  the  payment  of  debts, 
the  personal  estate  shall  be  applied  in  exoneration  of  the  real(/);(2) 
and  it  shall  be  thus  applied,  although  the  personal  debt  be  secured 
by  mortgage,  and  whether  there  be  or  be  not  a  bond  or  covenant  for 

have   left  off  trade  before  they  died.  C.  Ambl.    581.      Webb  v.   Jones,  2 

Hitchon  v.  Bennet,  4  Madd.  Rep.  180.  Bro.  Ch.  Rep.  60.     Vid.  also  3  Bac. 

(i)  1  P.  Wms.  29-1,  note  1.    Heath  Abr.    85.     2   Fonbl.    290,   note    (a). 

V.  Heath,  2  P.  Wms.  366.     Walker  v.  Reade  v.  Litchfield,  3  Ves.  jun.  475. 
Jackson,  1  Wils.  24.  S.  C.  2  Atk.  624.  (A)  Bootle  v.  Blundell,  1  Meri.  Rep. 

Bridgman  v.  Dove,  3  Atk.  202.     Ha-  193,  and  19  Ves.  494.     S.  C.  Greene 

slewood  V.  Pope,  3  P.  Wms.  324.     1  v.  Greene,  4  Madd.  Rep.  148.     Gittins 

Bro.  P.   C.   192.     Bunb.  302.     Lord  v.   Steele,    1   Swans.  24.     Tower  v. 

Inchiquin  v.  French,  Amb.33.     S.  C.  Lord  Rous,  18  Ves.  132. 
1   Wils.  82.      Samwell   v.   Wake,  1  (/)  Fereyes  v.  Robertson,  Bunb.  301. 

Bro.  Ch.  Rep.  144.     Duke  of  Ancas-  Bond  v.  Simmons,  3  Atk.  20.     Hasle- 

ter   V.  Mayer,   ib.  454.     Bamficld  v.  wood  v.  Pope,  3  P.  Wms.  322.  2Eq. 

Wyndharn,  Prec.  in  Ch.  101.     Wain-  Ca.  Abr.  493. 
Wright  V.  Bendlowes,  2  Vern.  718.  S. 


(1)  Lands  descending  in  another  state  are  not  assets  inMassacliusetls.  Jlnstiiiw  Gage, 
9  Mass.  Rep.  .3'J5.  Tlie  liability  of  administrators  to  account,  is  commensurate  with  the 
jurisdiction  of  lieirs  from  wiunn  tliey  have  received  tlieir  authority;  and  therefore  an  ad- 
ministrator is  not  chargeable  with  assets  of  tiie  deceased  in  another  state,  of  which  he  may 
have  received  possession.  MoUdandw  JVi>aman,Adm.  3  Penns.  liep.  185.  See  Hooker 
V.  Oimitead,  0  Pick.  llep.  481. 

(2)  Shel/jif  V.  The  Commoii-ivcullh,  13  Serg-.  k  Rawle,  348.  Todd  v.  Todd's  Ex.  1 
Serg.  h  Kawle,  453.  '2  Dall.  Rep..  244.  '  J  lull  v.  Hall,  2  M'Cord's  Cha.  Rep.  302. 
M'Kuy  V.  Green,  Livingston  \.J\l'ev)kirk,  3  Johns.  Cha.  Rep.  57.  312.  Seaverv.  I^e-wis, 
14  Mass.  Rep.  83. 

3G 


418  OF  MARSHALLING  ASSETS.  [rOOK  III. 

paymcnt(w2).  So  lands  subject  to  or  devised  for  payment  of  .debts 
shall  be  liable  to  discharge  such  mortgaged  lands  eilher  descended  or 
devised(«),  and  although  the  mortgaged  lands  be  devised  expressly 
subject  to  the  incumbrance(o).  So  lands  descended  shall  exonerate 
mortgaged  lands  devised (/?).  So  unincumbered  lands  and  mort- 
gaged lands,  both  specifically  devised,  but  expressly  after  payment 
of  a//del)ts,  shall  contribute  to  the  discharge  of  the  mortgage(<7).(l) 
In  all  these  cases  the  debt  is  considered  as  the  personal  debt  of  the 
testator  himself,  and  therefore  a  charge  on  the  real  estate  merely  col- 
lateral. 

But  a  diflcrent  rule  prevails  where  the  charge  is  on  the  real  es- 
tate principally,  and  the  personal  security  is  only  collateral(r); 
[419]  As  where  a  husband  on  his  marriage  covenants  to  settle  lands 
and  to  raise  a  term  of  years  out  of  them  for  securing  portions,  and 
also  gives  a  bond  for  the  performance  of  the  covenant;  for  in  such 
case  the  land-holder  enters  into  such  covenant  relying  on  the  land  to 
enable  him  to  discharge  it;  nor  does  the  money  raised  increase  the 
personal  estate,  but  is  to  exonerate  the  rest  of  his  real(5).  So  where 
the  debt,  although  personal  in  its  creation,  was  contracted  originally 
by  another(/):  As  where  an  estate  is  bought  subject  to  a  mortgage, 
the  personal  estate  of  the  purchaser  shall  not  be  applied  in  exonera- 
tion of  the  real  estate,  unless  he  appeared  to  have  intended  to  make 
the  debt  his  o\vn[u);(2)  but  a  mere  covenant  for  securing  the  debt 
will  not  be  sufficient  for  that  purpose(y).(3) 

(m)  Cope  V.    Cope,   2  Salk.  449.  v.  Mangle,  Ambl.  L50. 
Howelv.  Price,  1  P.Wrns.-29l.  Pock-  (*)  2  Fonbl. '292,  note  b.     Edwards 

ley  V,  Pocklcy,  1  Vern.  36.  43G.  King  v.  Freeman,  2  P.  Wras.  435. 
V.  King,  3  P.  Wras.  360.     Gallon  v.  (i)   Cope  v.    Cope,    2    Salk.    449. 

Hancock,  2  Atk.  436.      Robinson  v.  Bagot   v.    Oiighton,   1  P.  Wms.  347. 

Gee,  1   Ves.  251.     6  Bro.  P.  C.  520.  Leman  v.  Newnham,  1  Ves.  51.     Ro- 

Philips  V.  Philips,  2  Bro.  Ch.  Rep.  binson  v.    Gee,  ib.   251.     Lacam  v. 

273.  Merlins,   ib.   312.     Parsons  v.  Free- 

(n)  Bartholomew  V.  May,  1  Atk.  487.  man,  Ambl.  115.   2  P.  Wms.  664,  in 

March,   of  Tweedale  v.   Coverley,  1  note.     Lawson  v.  Hudson,  1  Bro.  Ch. 

Bro.  Ch.  Rep.  240.  Rep.  58.  Earlof  Tankerville,  v.  Faw- 

(0)  Serle  v.  St.  Eloy,  2  P.  Wms.  cet,  2  Bro.  Ch.  Rep.  57.  Tweddle  v. 
386.  Tweddle,  ib.   101.  152.      Billinghurst 

{p)  Gallon  V.  Hancock,  2  Atk.  424.  v.  Walker,  ib.  604. 

(fj)  Carter  v.    Barnardislon,    1    P.  (;/)  2  Fonbl.  202,  note  b.     Pockley 

Wms.  505.     2  Bro.  P.  C.  1.  v.  Pockley,  1  Aern.  36.     6  Bro.  P.  C. 

(r)  Edwards  V.  Freeman,  2  P.  Wms.  520.     Billinghurst  v.  Walker,  2  Bro. 

437.  664,  in  note.     Ward  v.  Lord  Dud-  Ch.  Rep.  608. 

ley  and  Ward,  2  Bro.  Ch.  Rep.  316.  (r)  Bagot  v.  Oughton,  1   P.  Wms. 

Leman  V.  Newuham,  1  Ves.  51.  Lewis  347.     Evelyn  v.  Evelyn,  2  P.  Wms. 

(1)  The  order  of  marshalling  assets  towards  payment  of  debts  is,  1.  The  personal  es- 
tate; 2.  Lands  descended;  3.  Lands  devised.  Livijigston  v.  JVe-uikirk,  3  Johns.  Ch.  Rep. 
313.  Hall  V.  Hall,  2  Al'Cord's  Ch.  Rep.  303.  Slielby  v.  The  Commoivwealih,  13  Serg.  & 
Rawle,  348.    Hays  v.  Jackson,  6  Mass.  Rep.  151.      JFalker's  Estate,  case  of,  3  Rawie,  239. 

(2)  9  Serg.  k  Rawle,  73.  The  devisee  of  unpatented  lands  belonging  to  the  testator, 
has  no  right  to  call  upon  the  personal  estate  of  the  testator  to  pay  the  purchase-money 
and  fees  of  patenting  the  land.     Case  of  John  Keyset],  Ex.  of  Keysey,  9  Serg.  k  R.  71. 

(3)  Cumberland  {Duke  of )  v.  Codrington,  3  Johns.  Cha.  Rep.  229. 


CHAP.  VIII.]  OF  MARSHALLING  ASSETS.  419 

With  respect  to  the  priority  of  the  application  of  real  assets,  when 
the  personal  estate  is  either  exempt  or  exhausted,  it  seems  that  first 
the  real  estate  expressly  devised  for  the  purpose  shall  be  applied; 
secondly,  to  the  extent  of  the  specialty  debts,  the  real  [420]  estate 
descended;  thirdly,  the  real  estate  specifically  devised  subject  to  a 
general  charge  of  debts(^^). 

As  it  is  the  object  of  a  court  of  equity,  that  every  claimant  on  the 
assets  of  the  deceased  shall  be  satisfied,  so  far  as  that  purpose  can  be 
effected  by  any  arrangement  consistent  with  the  nature  of  the  re- 
spective claims  of  creditors,  it  has  been  long  settled,  that  where  A.,  a 
creditor,  has  more  than  one  fund  to  resort  to,  and  B.,  another  creditor, 
only  one,  A.  shall  resort  to  that  fund  on  which  B.  .has  no  lien(:r).(l) 
If  therefore  a  specialty  creditor,  whose  debt  is  a  lien  on  the  real  as- 
sets, receive  satisfaction  out  of  the  personal  assets,  a  simple  contract 
creditor  shall  stand  in  the  place  of  such  specialty  creditor  against  the 
real  assets,  so  far  as  the  latter  shall  have  exhausted  the  personal  as- 
sets in  payment  of  his  debt(y).(2) 

The  same  marshalling  of  assets  may  also  take  place  in  favour  of 
legatees.  As  against  assets  descended  they  shall  have  the  same  equity: 
Thus  where  lands  are  subjected  to  the  payment  of  all  debts,  a  legatee 
shall  stand  in  the  place  of  a  simple  contract  creditor,  who  has  been 
satisfied  out  of  the  personal  assets(z).  So,  where  legacies  [421]  by 
the  will  are  charged  on  the  real  estate,  but  not  the  legacies  by  the 
codicil;  the  former  shall  resoi't  to  the  real  assets  on  a  deficiency  of 
such  as  are  personal  to  pay  the  whole(«).  So,  although  a  specialty 
creditor  may  elect  to  have  his  debt  out  of  the  hands  of  the  heir  or  of 
the  devisee,  yet,  as  we  have  seen,  the  heir  or  devisee  shall  in  such 
case  stand  in  the  place  of  such  creditor,  and  reimburse  himself  out  of 
the  personal  estate(Z)).(3) 

But  the  principles  of  these  rules  will  not  admit  of  their  being  ap- 

661.     Forrester  v.  Lord  Leigh,  Ambl.  Hodges,  9  Ves.  53. 
171.     Earl  of  Tankerville  v.  Fawcelt,  {y)  2  Ch.  Ca,  4.    Sagittary  v.  Hyde, 
2  Bro.    Ch.  Rep.   58.     Tweddell   v.  1  Vern.  455.     1   Eq.  Ca.    Abr.   144. 
Tweddell,   ib.    152.     Billinghurst  v.  Wilson  v.  Fielding,  2  Vern.  763.  Gal- 
Walker,  ib.  G04.  ton  v.  Hancock,  2  Atk.  436,  3  Wood- 

{w)  1  P.  Wms.  294,  note  1.     Gal-  des.  489. 

ton  V.  Hancock,  2  Atk.  424.   Doune  v.  (z)  Haslewood  v.  Pope,  3  P.  Wms. 

Lewis,  2  Bro.  Ch.  Rep.  257.  261,  in  323. 

note,  259,  in  note.     Manning  v.  Spoo-  (a)  3    Ch.  Rep.   83.     Masters,  v. 

ner,  3  Ves.  jun.  117.  Masters,  1  P.  Wms.  422.     Bligh  v. 

(a)  1  P.  Wms.  679,  note  1.  Lanoy  Earl  of  Darnley,  2  P.  Wms.  620. 

V.  Duke  of  Athol,  2  Atk.  446.    Lacam  {b)  Chfton  v.  Burt,  1  P.  Wms.  680. 
V.  Merlins,   1    Ves.  312.      Mogg  v. 

(1)  Cheeseborough  v.  Millard,!  Johns.  Cha.  Rep.  409.  Greenwood\.  Jiocrjjiet^s Ex. 
2  Bay's  Rep.  87.    Fowler  v.  Barksdale,  Harp.  Eq.  Rep.  104. 

(2)  Ilaydon  v.  Good,  4  Hen.  8c  Munf.  460.  So  a  surety  who  pays  a  specialty  debt,  due 
by  the  intestate,  has  a  right  to  stand  in.  the  place  of  the  specialty  creditor,  and  be  paid 
such  portion  of  the  assets  as  the  specialty  creditor  would  have  been  entitled  to.  Dors/ici- 
mer  v.  Jiucher,  Adtn.,  7  Serg.  be  Ilawle,  9. 

(3)  Sec  ante,  page  411,  note  n.  (1). 


421  OF  MARSHALLING  ASSETS.  [bOOK  111. 

plied  in  aid  of  one  claimant  so  as  to  defeat  another.  And,  therefore, 
a  pecuniary  legatee  shall  not  stand  in  the  place  of  a  specialty  credi- 
tor, as  against  lands  devised,  though  he  shall  as  against  lands  de- 
scendcd(c).  Yet  such  legatee  shall  stand  in  the  place  of  a  mort- 
gagee,-who  has  exhausted  the  personal  assets,  to  he  satisfied  out  of  the 
mortgaged  premises,  though  specifically  dcvised(^);  for  the  applica- 
tion of  the  personal  assets  in  case  of  the  real  estate  mortgaged(e), 
does  not  take  place  to  the  defeating  of  any  legacy,  either  specific  or 
pccuniary(/).  A  legatee  shall  also  stand  in  the  place  of  a  specialty- 
creditor,  who  has  exhausted  the  personalty,  as  against  aresiduary.de- 
visee  of  the  real  and  personal  estate,  because  he  has  only  the  rest  and 
residue(^). 

Nor  do  any  of  the  rules  above  mentioned  subject  any  fund  to  a 
claim  to  which  it  was  not  before  lialjlc,  but  only  provide  that 
the  election  of  one  claimant  shall  not  prejudice  the  claims  of  the 
[422]  others(/i).  Thus,  where  A.,  seised  of  freehold  and  copyhold 
lands,  mortgaged  them  in  his  lifetime,  and  died  indebted  by  mort- 
gage, and  on  several  bonds,  the  specialty  creditors  urged  the  court, 
in  marshalling  the  assets,  to  cast  the  whole  mortgage  upon  the  copy- 
hold estate,  in  order  that  the  specialty  creditors  might  have  the  benefit 
of  the  whole  freehold  estate:  yet  the  court  held,  that  as  copyhold  es- 
tates were  not  liable,  either  at  law  or  in  equity,  to  the  testator's  debts, 
fitrther  than  he  subjected  them  to  the  same,  the  copyhold  estate 
should  bear  its  proportion  with  the  freehold  estate  for  payment  of  the 
mortgage,  buishould  not  be  liable  to  make  satisfaction  for  the  specialty 
debts(e).  But  this  case,  as  being  quite  anomalous  and  irreconcilable 
with  all  principle,  has  been  lately  overruled(>t). 

Where  a  testator,  having  both  freehold  and  copyhold  estates,  charges 
all  his  real  estate  with  payment  of  his  debts,  if  he  has  surrendered 
the  copyhold  to  the  use  of  his  will,  the  freehold  and  copyhold  shall 
be  applied  rateably;  but  if  he  has  not  surrendered  the  copyhold,  it 
shall  not  be  applied  until  the  freehold  is  exhausted(/). 

If  a  legacy  be  given  out  of  a  mixed  fund  of  real  and  personal  es- 
tate, payable  at  a  future  day,  and  the  legatee  die  before  the  day  of 
payment,  it  is  doubtful  whether  the  court  will  marshal  the  assets,  so 
as  to  turn  such  legacy  on  the  personal  estate:  in  which  case  it  would 

(c)  Heme  v.  Meyrick,  1  P.  Wms.  Lacanv.  Martins,  1  Ves.  312. 

201.     CUfton  V.  Burt,  678.      Hasle-  (J)  Robinson  v.  Tonga,  cited  1  P. 

wood  V.  Pope,  3  P.  Wms.  324.  Wms.  679,  note  1,  and  vid.  supr.  411, 

(r/)  Lutkins  v.  Leigh,  Ca.  Temp,  and  2  Ves.  271. 

Talb.  53.     Forrester  v.  Lord  Leigli,  {k)  Aldrich  v.  Cooper,  8  Ves.  jun. 

Ambl.  171.  382.     See  also  Trimmer  v.  Bayne,  9 

(e)  Vid.  Howel  v.  Price,  1  P.  Wms.  Ves.  jun.  209.     And  in  Tomlinson  v. 

294.  Ladbroke,  at  the  Roll's  sittings  after 

(/)  Oneal  v.  Mead,  1  P.  Wms.  693.  Hil.  T.  1809,  Sir  Wm.  Grant,  M.  R. 

Tippingv.  Tipping,  ib.  730.     Davisv.  held  clearly  that  the  assets  should  be 

Gardiner,  2  P.  Wms.  190.     Rider  v.  marshalled  as  against  a  copyhold  estate. 

Wager,  ib.  335.  (/)    Growcock  v.  Smith,  2  Cox's 

{g)  Handby  v.  Roberts,  Ambl.  129.  Rep.  397. 

(A)  Gallon  v.  Hancock,  2  Atk.  438. 


CHAP.  VIII.]  OF  MARSHALLING  ASSETS.  422 

be  vested  and  transmissible;  but,  as  against  the  real  estate,  it  would 
sink  by  the  death  of  the  legatee(7r<.). 

As  against  real  assets  descended,  the  wife  shall  stand  in  the  place 
of  specialty  creditors  for  the  amount  of  her  paraphernalia(?i);  but, 
[423]  whether  she  shall  be  so  entitled  as  against  real  assets  devised, 
seems  to  be  a  point  unsettled(o),  excepting  in  the  case  of  a  real  es- 
tate charged  with  payment  of  debts  in  aid  of  the  personal  estate,  in 
which  the  court  decreed  her  paraphernalia  to  the  wife,  in  prejudice 
of  the  charged  estate(7j). 

A  court  of  equity  will  not  marshal  assets  in  favour  of  a  charitable 
bequest,  so  as  to  give  it  effect,  out  of  the  personal  chattels,  it  being 
void  so  far  as  it  touches  any  interest  in  land(§'). 

Under  a  devise  of  real  and  personal  estate  in  trust  to  pay  debts 
and  legacies,  some  of  which  were  void  under  thestat.  9  Geo.  2.  c.  36, 
as  a  charge  of  charity  legacies  upon  the  real  and  leasehold  estates  and 
money  on  mortgage;  on  a  deficiency  of  assets  the  other  legatees  were 
preferred  to  the  heir(r). 

(/«)  Prowse  V.   Abingdon,  1  Atk.  Ves.  7.     Vid.  supr.  231. 

482,  and  Pearce V.Taylor,  before  Lord  {p)  Boyntun  v.  Boyntun,  1  Cox's 

Thurlow,  C.  Trin.  Vac.  1790,  cited  1  Rep.  106. 

P.  V^^ms.  679,  note  1.  {q)  ^logrg  v.    Hodges,  2  Ves.  52. 

(n)  Tipping V,  Tipping,  1  P.Wms.  Attorney-General  v.  Tyndall,  Ambl. 
729.  Snelson  v.  Corbett,  3  Atk.  369.  614.  Foster  v.  Blagden,  ib.704.  Hill- 
Graham  V.  Londonderry,  ib.  393.  yard  v.  Taylor,  ib.  713.     3  Wooddes. 

(o)  2  P.  Wms.  554,  note  1.    Probert  489,   note   (g).     Mogg  v.  Hodges,  1 

V.   Clifford,  Ambl.    6.      Incledon    v.  Cox's  Rep.  7,  and  other  cases  in  the 

Northcote,  3  Atk.  438.     3  Bac.  Abr.  same  work. 

87.     Lord  Townsend  v.  Windham,  2  {r)  Currie  v.  Pye,  17  Ves.  jun.463. 


424  OF  A  DEVASTAVIT.  [bOOK  III. 


CHAPTER  IX. 


OF  A  DEVASTAVIT. 

Having  thus  discussed  what  belongs  to  the  discharge  of  an  exe- 
cutor's duty,  I  am  now  to  consider,  what  shall  amount  to  such  a  vio- 
lation or  neglect  of  it  as  shall  niake  him  personally  responsible. 

This  species  of  misconduct  is  styled  in  law  a  devastavit;  that  is,  a 
wasting  of  the  assets(a). 

And  where  an  executrix  in  respect  of  her  receipts  as  such,  was 
considerably  indebted  to  the  estate,  an  annuity  to  which  she  was  en- 
titled under  the  will,  was  ordered  as  it  became  due,  to  be  applied  in 
payment  of  such  debt,  and  her  solicitor  was  declared  to  have  a  lien 
for  his  taxed  costs,  upon  any  payment  of  the  annuity  to  which  she 
might  be  entitled,  after  payment  of  what  was  due  to  the  estate(6). 

An  executor  may  incur  this  charge  in  a  variety  of  modes,  not  only 
by  plain  and  palpable  acts  of  abuse,  as  giving  away,  embezzling,  or 
consuming  the  property,  without  regard  to  debts  or  legacies;  but  also 
by  misapplying  it  in  extravagant  expences  in  the  funeral(c);  in  the 
payment  of  debts  out  of  their  legal  order,  to  the  prejudice  of  such  as 
are  superior;  or  by  an  assent  to,  or  payment  of  a  legacy,  when  there 
is  not  a  fund  sufficient  for  creditors(^/).  Or  by  disbursements  in  the 
schooling,  feeding,  or  clothing  of  an  intestate's  children  subsequently 
to  his  decease(e). 

So  if  the  executor  release  or  cancel  a  bond  due  to  the  testator,  or 
[425]  deliver  it  to  the  obligor,  this  shall  charge  him  to  the  amount  of 
the  debt,  whether  in  point  of  fact  he  received  it  or  not(/").  If  he 
release  a  cause  of  action  accrued  in  right  of  the  testator,  whether 
before  or  subsequently'-to  the  testator's  death,  this  also  will,  generally 
speaking(^),  be  a  devustaviiiji).  If  he  submit  to  arbitration  a  debt, 
or  any  other  demand  he  may  be  entitled  to  in  right  of  the  testator, 
and  the  arbitrator  do  not  award  him  a  recompence  to  the  full  value, 
this,  as  being  his  own  voluntary  act,  shall  bind  him  to  answer  the 
difl'erence(?').(l)  If  an  executor  take  an  obligation  in  his  own  name 
for  a  debt  due  by  simple  contract  to  the  testator,  he  shall  be  equally 

(a)  Off.  Ex.  157.     3  Bac.  Abr.  77.  (/)  Off.  Ex.  159.    1  Nels.  Abr.  262. 

Com.  Dig.  Admon.  1. 1.   11  Vin.  Abr.  {g)  Sed  vid.  inf.  429. 

306.  (/OOff.  Ex.  71.  159.     Chandler  v. 

(6)  Skinner  V.  Sweet,  3  Madd.  Rep.  Thompson,    Hob.    266.     And.    138. 

244.  Brightraan  v.  Knightley,  Cr.  Eliz.  43. 

(c)  Vid.  supr.  246.  (»)  Off.  Ex.  71.159,  160.     Anon.  3 

\d)  Off.  Ex.  158.  Leon.  51. 

(e)  Giles  V.  Dyson,  1  Starkie,  32. 


(1)  The  award,  however,  will  be  good.    Bean  v.  Farnam,  6  Pick.  Rep.  209. 


CHAP.  IX.]  OF  A  DEVASTAVIT.  425 

chargeable  as  if  he  had  received  the  money;  for  the  new  security  has 
extinguished  the  old  right,  and  is  quasi  a  payment(j).  If,  in  the 
character  of  an  executor,  he  commence  an  action  in  which  he  has  a 
right  to  recover,  and  afterwards  agree  with  the  defendant  to  receive 
a  specific  sum  at  a  future  day  as  a  compensation,  and  the  party  fail  to 
pay  it,  the  executor  in  that  cape,  is  liable  on  a  devastavit  for  the 
value(A,').  Thus,  where  the  executor  of  an  obligee  took  in  payment 
a  bill  of  exchange  drawn  on  a  banker  for  the  money,  who  accepted 
the  bill,  and  before  payment,  failed;  on  the  executor's  afterwards 
bringing  an  action  on  the  bond,  and  this  matter  being  disclosed  ia 
evidence,  it  was  held  to  be  a  payment(/).  So,  if  an  [426]  executor 
pay  money  in  discharge  of  an  usurious  bond,  or  any  other  usurious 
contract  entered  into  by  the  testator,  it  shall  involve  him  in  the  same 
consequences(m). 

Such  acts  also  of  negligence  and  careless  administration  as  tend  to 
defeat  the  rights  of  creditors,  or  legatees,  fall  under  the  same  denomi- 
nation. As  if  the  executor  delay  the  payment  of  a  debt  payable  on 
demand  with  interest,  and  suffer  judgment  for  principal  and  interest 
incurred  after  the  testator's  death;  unless  he  can  show  that  the  as- 
sets were  insufficient  to  discharge  the  debt  immediately(7i),  he  shall 
be  held  guilty  of  a  devastavit. 

If  the  executor  lose  any  of  the  testator's  chattels,  he  shall  be  re- 
sponsible for  their  value(o).  And  in  a  case  where  the  executor  had 
lost  a  bond  due  to  the  testator,  the  Court  of  Chancery  was  inclined  to 
charge  him  with  the  debt:  but  directed  only  that  he  should  prose- 
cute a  suit  instituted  by  him  against  the  obligor,  with  effect,  in  order 
to  recover  the  money  on  the  bond,  and  respited  judgment  in  the 
meantime(^).  If  the  executor  apply  merely  by  an  attorney  to  the 
obligor  of  a  bond  to  pay  the  debt,  but  bring  no  action,  he  shall  be 
charged  with  the  amount  of  it(^).  He  shall  in  like  manner,  [427]  be 
personally  answerable,  if,  by  delaying  to  commence  an  action,  he 
has  enabled  a  creditor  of  a  testator  to  avail  himself  of  the  statute  of 
limitations(r). 

If  an  executor  appoint  an  agent  to  collect  the  testator's  effects,  and 
the  agent  embezzle  them,  it  shall  be  a  devastavit  by  the  executor(5). 
If  a  term  be  assigned  by  an  executor  in  trust,  to  attend  an  inherit- 
ance, it  shall  in  equity  follow  all  the  estates  created  out  of  such  in- 
heritance, and  all  the  incumbrances,  subsisting  upon  it(/);  but  as  by 
such  assignment  the  term  ceases  to  be  assets  at  law,  the  executor  shall 

(_;■)  Goring  v.   Goring,   Yelv.    10.  and  see  Ilall  v.  Hallet,  1  Cox's  Rep. 

Norden  V.  Levit,  2  Lev.'l89.    Keilw.  134. 

52.  (o)  Vid.  Goodfellow  v.  Burchett,  2 

•     (/c)  Norden  v.  Levit,'2  Lev.  189.   2  Vern.  2!)9. 

Jon.  88.     S.  C.  Barker  v.  Talcot,  1  {p)  ibid. 

Vern.  474.  (y)    3  Bac.  Abr.  GO.      Lowson  v. 

(/)  3  Bac.  Abr.  78,  in  note;  et  vid.  Copoland,  2  ]}ro.  Ch.  Rep.  15G. 

1  Vern.  474.  (?•)   ITayward  v.   Kinsoy,   12  Mod. 

(m)  Winchcoinbc  v.  Bp.  of  Win-  573.     11  Vin.  Abr.  30!>, 

Chester,  Hob.  107.     Noy,  12!).  (.s)  .K'ukins  v.  IMombe,  C  Mod.  93. 

(n)  Seaman  v.  Everad,  2  licv.  40;  (/)  Suj)r.  410. 


427  OF  A  DEVASTAVIT.  [bOOK  III. 

be  responsible  to  the  creditors  for  a  dci'astnvit{ii).  If  an  executor 
retain  money  in  his  hands  for  any  length  of  time,  which  by  applica- 
tion to  the  Court  of  Chancery,  or  by  vesting  in  the  funds,  he  might 
have  made  productive,  he  shall  be  charged  with  interest  upon  \i[w). 
If  he  permit  rent  to  run  in  arrcar,  and  it  is  lost  through  his  negli- 
gence, he  will  be  charged  with  the  amount  so  lost(.r). 

If  he  lay  out  the  assets  on  private  securities,  all  the  benefit  made 
thereby  shall  accrue  to  the  estate,  yet  the  executor  shall  answer  all 
the  deficiency(y). 

And  where  an  executor  sold  houses  and  applied  part  of  the  money 
in  payment  of  debts,  &c.  and  paid  the  rest  into  his  bankers,  mixing 
it  with  his  own  money,  instead  of  vesting  the  same  in  stock  as  di- 
rected by  the  will,  and  the  bankers  failed,  he  was  held  liable  to  pay 
the  money  to  the  legatees(*). 

If  an  executor  sell  the  testator's  goods  at  an  undervalue,  although 
it  be  an  appraised  value(a);  or  if  he  delay  disposing  of  them,  by 
which  they  are  injured,  he  is  personally  bound  to  make  a  compen- 
sation(i).  If  he  omit  to  sell  the  goods  at  their  full  price,  and  after- 
wards they  are  taken  out  of  his  hands,  he  shall  be  liable  to  the 
[428]  extent  of  the  value  of  the  goods,  and  not  merely  to  what  he 
recovers  in  damages;  for  there  was  a  default  on  hispart(c).  But  if, 
without  any  imputation  on  him,  the  goods  are  taken  out  of  his  pos- 
session, although  he  recover  not  such  damages  as  the  good  were 
really  worth,  he  shall  be  responsible  for  no  more  than  he  recovers(^/). 
If  the  goods  be  perishable,  and  on  his  part  there  has  been  neither 
neglect  in  keeping  them,  nor  delay  in  selling  them;  in  case  they  are 
impaired,  he  shall  not  answer  for  their  first  value,  but  only  for  what 
they  were  worth  at  the  time  of  the  sale.  Yet,  if  the  goods  be  taken 
out  of  his  possession,  he  must  sue  the  party  taking  them,  that  he 
may  exempt  himself  from  any  greater  claim  than  the  damages  he 
shall  recover(e). 

In  case  of  an  executor's  investing  money  in  the  funds,  and  appro- 
priating the  same,  he  shall  not  be  answerable  for  a  loss  by  the  fall  of 
stocks(/).  Nor,  as  it  seems,  shall  he  be  so  liable,  although,  without 
the  indemnity  of  a  decree,  he  lend  money  on  a  real  security,  which 
at  the  time  there  was  no  reason  to  suspect(^).     It  has  been  held  that 

(m)  Charlton  v.  Lowe,  3  P.  Wms.  Rep.  73. 

330.     Willoughby  v.  Willoughby,  1  (a)  Off.  Ex.  158. 

Term  Rep.  763.  {h)  Jenkins  v.  Plombe,  6  Mod.  181, 

{w)  2  Fonbl.  2d  edit.  184,  note  p.  182. 

Bird  V.  Lockey,  2  Vern.  744.   Perkins  (c)  Ibid. 

V.   Baynton,    1    Bro.    Ch.   Rep.  375.  {d)  Ibid. 

Littlehales  v.  Gascoyne,  3  Bro.  Ch.  (e)  Ibid. 

Rep.  73.     Franklin  v.  Frith,  433,  et  (/)  2  Fonbl.  2d  edit.  181,  note  p. 

vid.  ibid.  107.  Hutchinson  v.  Hammond,  3  Bro.  Ch. 

(x)  Tebbs  v.  Carpenter,   1  Madd.  Rep.  147.     Franklin  v.  Frith,  ib.  433. 

Rep.  290.  Vid,  also  Cooper  v.  Do»^las,  2  Bro. 

{y)  Adye  v.  Feuilleteau,    1  Cox's  Ch.  Rep.  231. 

Rep.  24.  {g)  Brown  v.  Litton,  1  P.  Wms. 

(z)  Fletcher  v.  Walker,   3  Madd.  141. 


CHAP.  IX.]  OF  A  DEVASTAVIT.  428 

trustees  lending  money  on  personal  security,  is  not  of  itself  such 
gross  neglect  as  to  amount  to  a  breach  of  trust(A).  But  it  has  since 
been  decided  that  an  executor  cannot  lend  money  on  personal  se- 
curity, though  words  which  may  imply  a  discretion  so  to  do  are 
used  by  the  testator  in  his  will(e).  Nor  will  a  power  to  lend  money 
upon  real  or  personal  security,  enable  trustees  to  accommodate  a 
trader  with  a  loan  upon  his  bond(-t).  An  executor  has  an  honest 
discretion  to  call  in  a  debt  bearing  interest,  if  he  conceive  it  to  be 
in  hazard(/).  If  an  executor  merely  give  a  receipt  [429]  for  so 
much  due  on  a  bond  as  he  in  fact  receives,  he  shall  not  be  charged 
with  a  devastavit  for  the  residue(m).  Nor  is  a  conversion  of  the 
goods  of  the  testator  to  his  own  use  a  devastavit,  if  he  pay  debts  of 
the  testator  to  the  value  with  his  own*  money  (n).  Nor  is  he  so  li- 
able if  he  pay  a  debt  of  an  inferior  nature  out  of  his  own  purse  to 
the  amount  of  the  testator's  effects  in  his  hands;  for  they  remain 
equally  liable  to  the  claim  of  the  superior  creditor,  and  may  equally 
be  seized  at  his  suit  in  execution  in  specie,  as  the  testator's  proper- 
ty(o).  Nor,  if  the  executor  compound  an  action  of  trover  for  the 
goods  of  the  testator,  and  take  a  bond  for  the  money,  payable  at  a 
future  day,  does  that  act  necessarily  amount  to  a  devastavit,  as  the 
money,  for  which  the  bond  is  taken,  is  assets  immediately (7?).  But 
he  shall  be  charged,  as  we  have  seen(5'),  in  case  there  be  a  failure 
in  the  payment  of  it.  If  there  be  arrears  of  rent  on  a  lease,  and  on 
the  tenant's  becoming  insolvent,  the  executor  release  the  arrears, 
and  give  him  a  sum  of  money  to  quit  possession;  in  case  he  appear 
thus  to  have  acted  for  the  benefit  of  the  estate,  he  shall  be  allowed 
both(r).  Nor  is  an  executor,  as  we  have  seen(5),  bound  to  plead  the 
statute  of  limitations  to  an  action  commenced  against  him  by  a  cre- 
ditor of  the  testator. 

If  an  executor  become  bankrupt,  having  wasted  the  assets,  the 
devastavit  may  be  proved  under  the  commisslon(^).  Where  a  spe- 
cific legacy  was  given  to  an  executor,  who  afterwards  became  bank- 
rupt and  committed  a  devastavit,  and  the  subject  of  the  specific 
bequest  was  sold  by  his  assignees,  it  was  held,  that  the  produce  in 
their  hands  was  not  specifically  liable  to  make  good  the  devastavit, 
in  favour  of  the  parties  beneficially  entitled  under  the  will,  but  that 
such  parties  were  only  entitled  to  prove  under  the  commission  to  the 
amount  of  the  devastavit{u). 

[430]  If  the  husband  of  an  executrix  commit  a  devastavit,  in 

(A)  Harden  v.  Parsons,  1    Eden's         (n)  Merchant  v.  Driver,  1  Saund. 

Rep.  145.  307.     Vid.  supr.  238. 

(«■)  Wilkes  V.  Steward,  Coop.  Rep.         (0)  Wheatly  v.  Lane,  1  Saund.  218. 
6,  and  2  Cox's  Rep.  1.  {p)  Norden  v.  Levit,  2  Lev.  189. 

(A)    Langston  v.   OUivant,    Coop.         (</)  Supra.  425. 
Rep.  33.  (r)  Blue  v.  Marshall,  3  P.  Wms. 

[[)  2  Fonbl.  2d  edit.  186,  note  q.  381. 
Newton  v.  Bennet,  1  Bro.  Ch.  Rep.  (s)  Vid.  supr.  343. 

361.     Sed.  vid.  Anon.     Mosel.  98.  (<)  Whitmarsh's  B.  L.  2d  edit.  269. 

{m)  Com  Dig.  Admon.  L  2.    Off.         (u)  Geary  v.  Beaumont,  3  Meriv. 

Ex.  159.  431. 
37 


430  OF  A  DEVASTAVIT.  [bOOK  III. 

case  the  executorship  commenced  before  the  marriage,  they  shall 
both  he  chargeable.  If  it  commenced  subsequently  to  the  marriage, 
the  husband  is  liable  alone.  If  an  executrix  commit  a  devastavit, 
and  afterwards  marry,  the  husband,  we  have  seen,  as  well  as  the  wife, 
is  responsible  during  the  coverture(y). 

A  devastavit  by  one  executor  shall  not  charge  his  companion(  ?«);(!) 
and  if  there  be  several  executors  or  administrators,  each  shall  be  liable 
only  for  what  he  receives(.T),(2)  provided  he  hath  not  intentionally 
or  otherwise  contributed  to  the  devastavit  of  the  other(y).(3) 

But  an  executor  administering,  having  once  received  money,  as-  , 
sets  of  his  testator,  cannot  discharge  himself  under  the  plea  oi plen}. 
administravit  to  an  action  by  a  bond-creditor  of  his  testator,  by 
showing  that  he  paid  the  nloney  over  to  his  co-executor,  even  for 
the  purpose  of  satisfying  the  bond-creditor  who  had  applied  for  pay- 
ment of  such  co-executor,  if  the  co-executor  afterwards  misapplied 
the  money  by  retaining  it  to  satisfy  his  own  simple  contract  debt(z). 

Formerly,  the  executor  of  an  executor  could  not  be  charged  by  a 
devastavit  committed  by  the  first  executor,  although  to  the  preju- 
dice of  the  king,  for  it  was  held  to  be  a  tort{a),  and,  therefore,  to 
die  with  the  party.  But,  by  the  stat.  4  &  5  JV.  k  M.  c.  24,  s.  12,(4) 
an  executor  of  an  executor  shall  be  liable  on  a  devastavit  committed 
by  his  testator,  in  the  same  manner  as  he  would  have  been  if  living. 

(i')  Beynon  v.  Gollins,  2  Bro.  Ch.         {x)  Barnes,  440. 
Rep.  323.     Vid.  supr.  358,  359.  (/)  Vid.  infr. 

(to)  Off.  Ex.  161,  162.     Dyer,  210.         {z)  Crosse  v.  Smith,  7  East.  246. 
3  Bac.  Abr.  31.      Littlehales  v.  Gas-         («)Tucke'scase,  3  Leon.241.    Bey- 

coyne,  3  Bro.  Ch.  Rep.  74,  and  vid.  non  v.  GolUns,  2  Bro.  Ch.  Rep.  324. 
infr. 

(1)  Sutherland  y.  Brush,  7  Johns.  Cha.  Rep.  17. 

(2)  Douglass  V.  Satterlee,  11  Johns.  Rep.  16.  Brotim's  Appeal,  1  Dall.  Rep.  311. 
J[Ioore  V.  Tandy,  3  Bibb's  Rep.  97. 

(3)  Knox  V.  Picket,  4  Desaus.  Rep.  92.  Morrell  v.  Morrell,  5  Johns.  Cha.  Rep.  283. 
Sutlierland  v.  Brush, 

(4)  The  better  opinion  seems  to  be  that  this  statute  is  in  force  in  Pennsylvania.  See 
Roberts'  Dig.  Brit.  Statutes,  260. 


CHAP.  X.]    OF  REMEDIES  FOR  EXECUTORS  AT  LAW.        431 


CHAPTER  X. 


OF  REMEDIES    FOR  AND  AGAINST    EXECUTORS  AND  ADMINISTRATORS, 
AT  LAW  AND  IN  EQUITY. 


Sect.  I. 
Of  remedies  for  executors  and  administrators  at  law. 

Before-  I  conclude,  it  will  be  necessary  to  consider,  first,  what 
remedies,  either  at  law  or  in  equity,  executors  or  administrators  are 
entitled  to,  in  right  of  the  deceased;  and  then,  secondly,  what  reme- 
dies may  be  had  against  them. 

In  regard  to  the  first  of  these  points,  the  subject  has  been  in  a  great 
measure  anticipated  by  the  discussion  of  the  executor's  interest  in 
the  testator's  chases  in  action{a),  the  existence  of  which  necessarily 
supposes  a  remedy  to  give  it  effect. 

From  what  has  been  already  stated,  it  appears  that  the  executor 
represents  the  testator  in  respect  to  all  his  personal  contracts:  there- 
fore he  may  maintain  such  actions  to  enforce  them  as  might  have 
been  maintained  by  the  testator  himself(6).  Thus  an  executor 
[432]  may  have  an  action  on  a  debt  due  to  the  testator  by  judgment, 
statute,  recognizance,  obligation,  or  other  specialty(c).  So  he  is  en- 
titled to  an  action  of  debt  suggesting  a  devastavit  in  the  lifetime  of 
his  testator,  on  a  judgment  recovered  by  such  testator  against  an  ex- 
ecutor(f/).  So  the  executor  of  the  assignee  of  a  bail-bond  shall 
have  an  action  upon  it(e).  So  an  executor  may  maintain  an  action 
on  a  bond,  though  conditioned  for  the  performance  of  an  award(y), 
He  may  also  have  an  action  on  a  covenant  entered  into  with  the 
testator  to  perform  a  personal  thing(^§-);  and  even  on  a  covenant  that 
touches  the  realty,  as  for  assuring  lands,  if  it  were  broken  in  the 
testator's  lifetime;  and  in  such  cases  damages  shall  be  recovered  by 
the  executor,  although  he  be  not  expressly  named(A);(l)  for  since 

(a)  Vid.  supr.  157.  Term  Rep.  685. 

\h)  3  Bac.  Abr.  59.  91.     Countess  (e)  Fort.  367. 

of  Rutland  v.  Rutland,  Cro.  Eliz.  377.  (/)  2  Ventr.  349. 

Latch.  167.   Roll.  Abr.  912.    Olf.  Ex.  (a')  Latch.  168. 

C5.  '^  (A)  Com.  Dig.  Admon.B.13.  Cove- 
re)  Com.  Dig.  Admon.  B.  13.  nant,  B.  1.  3  IJac.  Abr.  91.  Lucy  v. 
((/)  Berwick  v.  Andrews,  1   Salk.  Lcvinglon,  2  Lev.  26.     >S.  C.  Ventr. 

314.  Mod.  Ca.  126.    S.  C.Ld.  Raym.  175.     Oil'.  Ex.  65. 

971.  1502.     Vid.  Erving  v.  Peters,  3 

(1)  Watson,  Mm.  v.  JilaTie,  Ex.  12  Serg.  &  Rawlc,  131. 


432  OF  REMEDIES  FOR  [bOOK  III. 

thet  estator  was  entitled  to  an  action  of  covenant  for  such  breach,  and 
to  recover  damages  as  to  the  principal  remedy,  and  not  merely  ac- 
cessary, the  law  devolves  such  remedy  on  the  executor:  but  if  waste 
be  committed  by  the  lessee  in  the  lifetime  of  the  lessor,  after  his 
death  his  heir  can  have  no  action  for  the  waste,  because  he  cannot 
recover  treble  damages;  nor  can  the  executor  have  it,  for  he  has  no 
[433]  right  to  recover  the  place  wasted,  the  inheritance  of  which 
has  descended  to  the  heir(z). 

The  executor  may  also,  in  the  right  of  the  testator,  maintain  an 
action  on  simple  contracts,  in  writing,  or  not  in  writing,  either  ex- 
press or  implied  (^');  and  even  on  contracts  for  the  benefit  of  a  third 
person(/).  He  may  likewise  have  an  action  for  a  relief  due  to  the 
testator(w).  And  pursuant  to  the  stat.  13  Ed.  1.  West.  2,  c.  23,(1) 
an  executor  is  entitled  to  an  action  of  account  on  account  witli  his. 
testator(/i);  but  this  species  of  remedy  in  the  courts  of  law  has  fallen 
into  disuse.  He  may  also,  by  the  express  provision  of  the  stat.  4 
Ed.  3.  c.  7,(2)  have  an  action  of  trespass  for  the  taking  of  the  tes- 
tator's goods:  and  although  the  statute  speaks  only  of  the  carrying 
away  of  goods,  yet  its  operation  is  not  confined  to  that  specific 
trespass,  which  is  named  merely  for  an  example;  but  it  has  been 
held,  as  we  have  seen(o),  to  comprehend  other  injuries  to  the  testa- 
tor's personal  estate(/j):  therefore  on  this  statute,  an  action  will  lie 
for  trespass  with  cattle  on  his  leasehold  premises(^);  or  for  cutting 
corn,  though  growing  on  his  freehold  lands,  and  carrying  it  away  at 
the  same  time(r).  So  by  the  like  equity  of  this  statute  [434]  an  ex- 
ecutor may  maintain  an  action  of  trover  for  the  conversion  of  the 
testator's  goods  in  his  lifetime(5);(3)  or  an  action  of  debt  on  the 
stat.  2  &  3  Ed.  6.  c.  13,  for  not  setting  out  tithes  due  to  the  testa- 
tor(/);  or  a  qicare  impedit,  in  case  he  died  within  six  months  after 

(t)  Off.  Ex.  65.     Com.  Dig.  Wast.  (r)  Emerson  v.  Emerson,  1  Ventr. 

C.  3.     2  Inst.  305.  187. 

(Ji)  Com.  Dig.  Admon.  B.  13.     3  (s)    Harris  v.   Vandridge,    Moore, 

Bac.  Abr.  59.  92.     Petrie  v.  Hannay,  400,     Countess  of  Rutland  v.  Rutland, 

3  Term  Rep.  660.  Cro.  Eliz.  377.   Latch  168.   1  Anders. 

(/)  Al.  1.  242.   Russell's  case,  1  Leon,  193,  194. 

(m)    Noy.   43.      Ld.  St.   John  v.  Morercn's  case,  1  Ventr.  30. 

Brandring,  Cro.  Eliz.  883.  (/)   Holl    v.    Bradford,    1    Sid.   88. 

(n)  Com.  Dig.  Admon.  B.  13.  Morton  v.  Hopkins,  407.      Williams 

(0)  Supr.  158.  V.  Cary,  4  Mod.  404.     Eaves  v.  Mo- 
(jo)    Com.   Dig.   Admon.    B.    13.  cato,  1  Salk.  314.     Moreron's  case,  1 

Semb.  Latch.  168.  Ventr.  30.     3  Bac.  Abr.  91,  in  note, 

(y)  Off.  Ex.  67,  68. 

(1)  In  force  in  Pennsylvania,  3  Binn.  604.    Roberts'"  Dig.  14. 

(2)  In  force  in  Pennsylvania,  3  Binn.  610.    Roberts'  pig.  248. 

(3)  See  2  Johns.  Rep.  229.  Kirby  v.  Clark,  1  Root.  389.  Toivle  v.  Lovett,  6  Maiss. 
Rep.  394.  And  the  statute  of  limitations  is  no  bar  in  an  action  of  trover,  where  the  con- 
version of  the  property  of  a  deceased  person  was  before  letters  of  administration  were 
granted  to  the  plaintiff,  but  at  a  time  when  there  was  no  person  to  assert  the  rights  of  the 
creditors  and  legatees  of  the  deceased — the  statute  begins  to  operate  only  from  the  time 
a  right  to  demand  the  property  vests  in  some  one.  HasletVs  Adm.  v.  Glenn,  7  Harr.  8c 
Johns.  Rep.  17.     Fishiuick's  Adm.  v.  Sewell,  4  Harr.  h  Johns.  393. 


CHAP.  X.]  EXECUTORS  AT  LAW.  434 

the  usurpation  (w);  and,  it  seems,  that  under  this  statute  an  executor 
may  maintain  ejectment  for  an  ouster  of  the  testator,  although  he 
were  seised  in  fee,  because  in  such  case  the  executor  may  pro- 
ceed in  that  form  of  action  for  damages  only(i^),  in  the  same  manner 
as  a  lessee  where  the  lease  expires  pending  the  suit(a:). 

By  the  common  law  an  executor  is  entitled  to  an  action  of  re- 
plevin for  goods  distrained  in  the  testator's  lifetime(y);  or  to  an 
action  of  detinue  for  any  specific  chattel;  or  to  bring  ejectment  to 
recover  land  held  for  a  term  of  years;  for  in  those  instances  the  thing 
itself  is  the  object  of  the  action,  and  the  property  continues  in  the 
plaintiff(~). 

[435]  He  may  likewise  avow  for  rent  in  arrear  at  the  testator's 
death,  as  incident  to  a  reversion  for  years,  which  devolved  upon  him 
as  executor(a). 

An  executor  shall  also  have  an  action  against  a  sheriff  for  the  es- 
cape of  a  party  in  execution  on  a  judgment  obtained  by  the  testator, 
even  where  the  escape  happened  in  the  testator's  lifetime(6),(l)  So 
he  may  have  an  action  against  the  sheriff  for  not  returning  his  writ, 
and  paying  money  levied  on  a  fieri  facias{c),(2)  or  for  a  false  re- 
turn, stating  that  he  had  not  levied  the  debt,  when  in  truth  he  had(c^). 
So  the  executor  of  a  landlord  may  maintain  an  action  against  an 
officer  for  removing  goods  taken  in  execution  before  the  payment  of 
a  year's  rent(e).  So  in  the  character  of  an  executor  he  may  have  a 
writ  of  error(/").  And  it  has  been  held,  that  he  may  have  such 
writ  to  reverse  the  testator's  attainder  of  high  treason,  inasmuch  as 
the  executor  is  privy  to  the  judgment,  and  may  be  damnified  by  it; 
but,  on  the  other  hand,  it. has  been  insisted,  that  though  the  reversal 
restore  the  blood  and  land,  it  is  of  no  avail  to  the  executor,  since  the 
goods  are  forfeited  by  the  conviction,  and  not  by  [436]  the  attain- 

(u)  Off.  Ex.  66,  67.  Sav.  94.  Latch.  Salk.  302.  307.     Duncombe  v.  Wal- 

168.     Noy.  87.    Poph.  189,    4  Leon,  ter,  2  Show.  254. 

15.  (b)    Cora.    D\g.    Admon.    B.    13. 

(ty)  3  Bac.  Abr.  92.    Moreron's  case,  Spurstow  v.  Prince,  Cro.    Car.  297. 

1  Ventr.  30.     Doe  v.  Potter,  3  Term  Dyer,  322.   Vid.  Berwick  v.  Andrews, 

Rep.  13.  Ld.  Raym.  973. 

(x)  Doe  V.  Potter,  3  Term  Rep.  16,  (c)  1  Roll.  Abr.  913,     Spurstow  v. 

argdo.  Co.  Litt,  285,     Slra,  1056,  Prince,  Cro.  Car.  297. 

(y)  Arundell  v,  Trevill,   1  Sid,  82,  (</)  Williams  v,  Cary,  4  Mod,  404. 

Latch,   168,     OfT,  Ex.  66.     Gilb.  L.  S.  C.  1  Salk.  12.     Comb.  S.  C..322, 

of  Distr.  3d  edit.  156.  323.     S.  C.  1  Ld.  Raym.  40,     3Bac. 

(z)  Latch.  168.     Off.  Ex.  65.  Abr.  98. 

(a)  Com,  Dig.  Distress,  A,  2,  1  Roll.  (e)  Palgrave  v.  Windham,  Stra,  202, 

Abr.  672.     Wankford  v.  Wankford,  1  (/)  Latch,  167. 


(1)  The  executors  of  a  sheriff"  cannot  maintain,  it  seems,  a  special  action  on  tlie  case 
against  a  gaoler  or  deputy  sheriff,  for  a  voluntary  escape,  the  gaoler  lieing  responsible 
only  in  asaumpsit  on  his  implied  undertaking  to  serve  the  sheriff  with  fidelity.  Kdin,  Ex. 
V.  (Mrander,  8  Johns.  Rep.  159. 

(2)  Paine  v.  t/lmer,  7  Mass.  Rep,  317. 


436  OF  REMEDIES  FOR  [bOOK  III. 

der(^).  An  executor  is  likewise  entitled  to  remedies  by  action  of 
deceit,  by  audita  querela,  or  indentitate  nominis[h). 

He  may  also  sue  in  that  character  in  a  court  of  conscience(/). 

And  by  the  stat.  11  Geo.  2.  c.  \9,s.  15,(1)  above  referred  io[k), 
an  executor  of  tenant  for  life,  on  whose  death  any  lease  determined, 
shall  in  an  action  on  the  case  recover  of  the  lessee  a  just  proportion 
of  rent  from  the  last  day  of  payment  to  the  death  of  such  lessor. 

But  an  executor  has  no  right  to  an  action  for  an  injury  to  tiie  per- 
son of  the  testator;(2)  as  for  a  battery, (3)  imprisonment,  or  the 
like(/):  nor  for  a  breach  of  promise  of  marriage,  where  no  special 
damage  is  alleged(wi):(4)  nor  for  a  prejudice  to  his  freehold;  as  for 
felling  his  wood,  or  cutting  and  carrying  away  his  grass;  for  wood 
and  grass  growing  are  parcel  of  the  freehold(?i),  and  consequently  in 
such  case  the  heir,  and  not  the  executor,  is  the  party  injured.  Yet, 
if  the  lord  of  a  manor  assess  a  fine  on  a  copyholder  for  his  admit- 
tance, and  die,  his  executor  may  bring  an  action  for  it;  for  it  does 
not  depend  on  the  inheritance,  but  is  like  a  fruit  fallen(o). 

[437]  The  executor  may  also  in  right  of  the  testator  maintain  ac- 
tions, the  cause  of  which  accrued  after  the  testator's  death(y;);  as  in 
case  a  bond  given  to  the  testator  be  forfeited  after  that  event((/);  or 
a  personal  covenant  entered  into  with  the  testator  be  broken(r);  or 
a  debt  on  any  other  species  of  contract  made  with  him  become  pay- 
able(5);  or  his  goods  to  be  taken(/);(5)  or  tresj)ass  committed  on  his 

{g)  King  V.  Ayloff,  2  Salk.  295,  pi.  35.     Evelyn  v.  Chichester,  3   Burr. 

1.     Vid.  4  BI.  Com.  387.  1717,  accord. 

(A)  Latch.  167.   Off.  Ex.  71.  3  Bac.  (/;)  Com.  Dig.  Plead.  2D.  1.   Anon. 

Abr.  60.  3  Leon.  212. 

(j)  Dougl.  246.  {q)  3   Bac.  Abr.  93.     1   Roll.  Abr. 

{k)  Supr.  208.  602. 

(/)  Com.  Dig.  Admon.  B.  18.  Latch.  (r)  Off.  Ex.  82.     11  Vin.  Abr.  231. 

168,  169.     1  Anders.  243.     Le  Mason  L.  of  Ni.  Pri.  158. 

V.  Dixon,  Jon.  174.  (s)  King  v,  Stevenson,  1  Term  Rep. 

{m)  Chamberlain  v.  Williamson,  2  487.     Miint  v.  Stokes,  4  Term  Rep. 

Mau.  &  Sel.  408.  565.     Com.  Dig,  Pleader,  2  D.  1.     3 

(n)  Emerson  v.  Emerson,  1  Ventr.  Bac.  Abr.  94.     Reg.  140.     5  Co.  31 

187.     Le  Mason  v.  Dixon,  Jon.  l74.  b.     Smith  v.  Norfolk,  Cro.  Car.  225. 

Off.  Ex.  67,  68.  Frevin  v.  Paynton,  1  Lev.  250. 

(o)  3  Bac.  Abr.  92.     Le  Mason  v.  {t)  4  Bac.  Abr.  93  in  note,  94.     1 

Dixon,    Carth.-  90.     Shuttleworth   v.  Roll.  Abr.  602.     Lane,  80.     Jenkins 

Garnet,  3  Mod.  239.     S.   C.  3  Lev.  v.  Plombe,  6  Mod.  92. 
261.    S.  C.  Comb.  151.    S.  C.  Show. 


(1)  The  l4th  and  15th  sections  of  this  statute  are  in  force  in  Pennsylvania.  3  Binn.  626. 
Roberts'  Dig.  236. 

(2)  "  Suppose  the  case  of  a  physician  or  surgeon,  who  hy  unskilful  treatment  injures 
the  health  of  a  patient — it  will  hardly  be  contended,  that  in  case  of  death,  the  cause  of 
action  would  survive."  Per  Tilghman,  C.  J.,  13  Serg.  k  Ilawle,  185. 

(3)  Miller  v.  Umbehoiver,  10  Serg.  k  Rawle,  31. 

(4)  Lattimore  v.  Rogers,  13  Serg.  k  Rawle,  183. 

(5)  Carlisle  v.  Burley,  3  Greenl.  Rep.  250. 


CHAP.  X.]      '  EXECUTORS  AT  LAW.  437 

leasehold  premises(w);(l)  in  all  these,  and  the  like  instances,  the 
executor,  in  his  representative  capacity,  is  entitled  to  a  remedy  by 
action. 

So,  if  the  testator  died  possessed  of  a  term  for  years  in  an  advow- 
son,  it  vests,  as  we  have  seen(?o),  in  his  executor;  and  thei'efore, 
in  case  of  his  being  disturbed,  he  may  maintain  a  quare  i77ipedit{x). 
So  an  executor  may  have  an  action  of  replevin  for  goods  taken  after 
the  death  of  the  testator(3/).  An  executor  may  also  avow  for  rent 
accrued  due  after  that  time,  as  incident  to  a  reversion  for  years,  which 
vested  in  him  in  that  character(2'). 

[438]  If  a  defendant  in  execution  on  a  judgment  recovered  by  the 
testator,  escape  after  the  testator's  death,  the  executor  shall  have  an 
action  against  the  sheriff  for  the  escape(«):  as  he  shall  also  in  case 
the  defendant  were  in  execution  on  a  judgment  recovered  by  him  as 
executor(6).(2) 

So  a  bail-bond  may  be  assigned  to  the  executor  of  a  deceased  plain- 
tiff, and  he  may  bring  an  action  upon  it(c):  or  a  bill  of  exchange 
may  be  endorsed  to  A.  as  executor,  and  he  may  in  that  character 
maintain  an  action  on  the  bill  against  the  acceptor(^).(3)  And  in 
like  manner  an  executor  may  bring  an  action  on  any  other  contract 
made  with  him  in  his  representative  capacity(e).(4) 

An  executor  may  hold  to  bail  on  an  affidavit  of  his  belief  of  the 
existence  of  the  debt,  for  the  nature  of  his  situation  will  not  admit 
of  his  being  more  positive(y).  Therefore,  if  an  executor  swear 
to  the  books  of  the  testator,  and  that  he  believes  them  to  contain  a 
true  account,  and  the  debt  to  be  still  unpaid,  it  shall  be  sufficient(^). 
But  an  affidavit  by  an  executor,  that  the  defendant  was  indebted  to 

(w)  Com.  Dig.  Admon.  B.  13.     Off.  Rep.  276.     Wate  v.  Briggs,  1  Lord 

Ex.  70.  Raym.   35.     Bonafous  v.  Walker,   2 

{w)  Vid.  supr.  139.  Term  Rep.  128. 

^x)  Off.  Ex.  36.  (c)  Fortes.  370. 

{y)  Ibid.  ((/)  King  v.  Stevenson,  1  Term  Rep. 

(2)  Com.  Dig.  Admon.  B.  9.  Wank-  487. 

ford  V.  Wankford,  1   Salk.  302.  307.  (e)    Com.    Dig.   Pleader,  2  D.   1. 

11  Vin.  Abr.  204.     Duncomb.  v.  Wal-  Cro.  Car.  685.     Roll.  Abr.   602.     3 

ter,  2  Show.  254.     Vid.  supr.  434.  Bac.  Abr.  93. 

(a)  3  BdC.  Abr.  57.     Off.  Ex.  46.  (/) Mackenzie  V.Mackenzie,  1  Term 

Godb.  262.     Vid.  supr.  435.  Rep.  716.     3  Bac.  Abr.  101. 

(6)   Slingsby  v.  Lambert,  1  Roll.  {<^)  1  Cromp.  Prac.  40. 


(1)  An  administrator  may  maintain  trespass  for  an  injiu-y  to  personal  property  commit- 
ted after  the  death  of  the  intestate,  and  Ai^oreadministi-ation  granted.  Hutcliim  v.  Jldaim, 
3  Greenl.  Rep.  174. 

(2)  After  a  judgment  recovered  in  a  suit  by  an  administrator,  the  debt  is  due  to  the 
plaintiff'  in  his  personal  capacity,  and  in  an  action  of  debt  upon  it  he  may  declare  tiiat  the 
debt  is  due  to  himself.     Biddle  v.  Wilkins,  1  Peters'  S.  C.  Rep.  C86. 

(3)  So  he  may  sue  in  .his  own  name,  or  as  executor,  upon  a  nots  made  payable  to  a 
third  person  or  hearer,  and  transferred  to  his  testator  before  his  death.  Jirooks  v.  Floyd, 
2  M 'Cord's  Rep.  304. 

(4)  Ayrea  v.  Toland,  7  Ilarr.  fcc  Johns.  Rep.  3.  • 


438  OF  REMEMIES  FOR  [bOOK  III. 

his  testator  in  fifty  pounds,  as  appears  by  the  testator's  books,  was 
held  defective,  and  common  bail  ordered  (A).  And  so  was  an  affi- 
davit by  an  executor  of  a  debt  due  to  his  testator,  "as  appears  from 
a  statement  made  from  the  testator's  books,  by  an  accountant  em- 
ployed by  the  deponent(/)." 

[439]  It  is  a  general  rule,  that  an  executor,  when  plaintiff,  shall 
pay  no  costs,  either  on  a  nonsuit  or  verdict,  for  he  sues  in  auter 
droit,  and  the  law  does  not  presume  him  to  be  sufficiently  cognisant 
of  the  nature  and  foundation  of  the  claims  he  has  to  assert(A').  There- 
fore, if  an  executor  bring  an  action  of  trover  on  a  conversion  in  the 
testator's  lilctime,  he  shall  not  be  liable  to  costs(/).  Nor  shall  he 
be  liable  if  the  trover  were  in  the  testator's  lifetime  and  the  conver- 
sion after  his  death(m).  JNor  shall  he  pay  costs  in  an  action  for  a 
debt  due  to  the  testator  in  his  lifetimc(w).  Nor  in  an  action  for  a 
debt  due  on  a  contract  made  with  the  testator,  which  became  pay- 
able after  his  death(o).  Nor  shall  an  executor  be  subject  to  costs 
on  a  writ  of  error  on  a  judgment  recovered  against  the  testator(/>); 
for,  in  all  these  instances,  it  is  necessary  for  him  to  sue  in  his  repre- 
sentative character,  and  expressly  to  name  himself  executor.  But 
if  he  reside  abroad  and  commence  an  action,  the  court  will  require 
him  to  give  security  for  costs,  although  he  sue  in  the  capacity  of 
■  executor(^).  Where  a  plaintifisued  as  executor  and  was  nonsuited, 
upon  evidence  given  at  the  trial  that  the  supposed  testator  was  still 
alive:  the  Court  of  King's  Bench  refused  to  allow  costs  to  the  de- 
fendant, it  appearing  from  affidavits  on  both  sides  to  be  still  at  least 
doubtful  whether  the  supposed  testator  were  living  or  not(r).  But 
if  he  may  bring  the  action  in  his  private  capacity,  there,  if  he  fail, 
he  shall  be  liable  to  costs;  as  in  an  action  for  trover  and  conversion 
subsequent  to  the  testator's  death(.s):  [440]  Or  if  he  bring  an  action 
for  money  belonging  to  the  testator's  estate,  had  and  received  by  the 
defendant  after  the  death  of  the  testator(/) :  Or  if  he  bring  an  action 


(Ji)  1  Cromp.  Prac.  40.     Walrond  528.     Portman  v.  Cane,  2  Ld.  Raym. 

V.  Fransham,  Sitra.  1219.  1413.     S.  C.  Stra.  682.     Vid.  Cock- 

(i)  Rowney  v.  Dean,  1  Price  Rep.  erill  v.  Kynaston,  4  Terra  Rep.  278. 
402.  {p)  Gale  v.  Till,  3  Lev.  375.     Vid. 

(A)  2  Bae.  Abr.  46.   3Bac.  Abr.  100.  Cockerill  v.  Kynaston,  4  Term  Rep. 

Cro.  Jac.  228.     Anon.  Yelv.  168.     1  280. 

Roll.  Rep.  63.     Gale  v.  Till,  Garth.  {q)  Chevalier  v.  Finnis,  3  Moore's 

281.     S.  C.  4  Mod.  244.    S.  C.  3  Lev.  Rep.  602. 

375.     Skinn.  400.     Portman  v.  Came,         (r)    Zachariah  v.  Page,  1  Barn,  and 

Stra.  682.     3  Bl.  Com.  400.     Tidd's  Aid.  386. 

Practice,    B.   R.  894.     Fetherston  v.  (s)  3  Bac.  Abr.  100.     Savil.   134. 

AUybon,  Cro.  Eliz.  503.   2Bulst.  261.  Latch.  220.   Anon.  1  Ventr.  92.    Hutt. 

Jenkins  V.  Plumbe,  1  Salk.  207.  Eaves  78.     Salk.  3,4.     Bollard  v.  Spencer, 

v.  Mocato,  ib.  314.     Hawes  v.  Saun-  7  Term  Rep.  358.     Vid.  Cockerill  v. 

ders,  3  Burr.  1586.     Say.  Costs.  97.  Kynaston,  4  Term  Rep.  279.     Hollis 

(/)  Cockerill  v.  Kynaston,  4  Term  v.  Smith,  10  East.  293. 
Rep.  277.  (0  Goldthwayte  v.  Petrie,  5  Term 

(m)  Ibid.  Rep.  234.    Vid.  also  Smith  v.  Barrow, 

(n)  Ibid.  2  Term  Rep.  477. 

(o)  Anon,  1  Ventf*  92.     1   H.  BI. 


CHAP.  X.]  EXECUTORS  AT  LAW.  440 

on  a  bond  executed  to  him  by  the  defendant,  for  securing  a  debt 
due  to  the  testator  by  simple  contract(i^):  Or  if  he  fail  by  his  own 
mispleading(2i'):  Or  if  he  bring  a  writ  of  error  where  he  was  liable 
to  costs  in  the  original  action(a^):(l)  In  all  these  cases  the  cause  of 
action  accrues  to  him  personally;  and,  therefore,  like  every  other 
plaintiff,  he  shall  be  subject  to  costs.  Nor  shall  he  be  exempt  by 
naming  himself  executor  in  an  action,  when  there  is  no  necessity  to  do 
so:  otherwise  he  may  in  all  cases  indiscriminately  evade  the  pay- 
ment of  costs(;y).  If  in  an  action  at  the  suit  of  the  executor,  the  de- 
fendant pay  money  into  court,  the  effect  of  it  will  not  be  to  make 
the  plaintiff  liable  to  pay,  but  only  to  lose  his  costs,  in  case  he  pro- 
ceed, and  fail  to  recover  a  farther  sum(z). 

An  executor  is  subject  to  costs  on  a  judgment  of  non  p7'Os[a).{2) 
And  where  he  has  knoivingly  hvou^t  a  wrong  action,  or  otherwise 
been  guilty  of  a  wdlful  default,  he  shall  pay  costs  on  a  discontinu- 
ance(6):  or  for  not  proceeding  to  trial  according  to  notice(c);(3)  but 
generally  he  is  not  liable  to  costs  in  either  of  those  two  cases(^).(4) 
[441]  Nor  -where  he  sues  merely  in  aider  droit  is  he  subject  to  costs 
on  a  judgment,  as  in  case  of  a  nonsuit(e). 

Nor  is  it  necessary  for  the  executor  or  administrator  of  an  attorney 
to  deliver  a  bill  of  costs  done  by  the  deceased  before  the  commence- 
ment of  an  action:  for  the  stat.  2  Geo.  2.  c.  23,  §  23,  is  confined  to  ac- 
tions brought  by  the  attorney  himself,  and  extends  not  to  his  personal 
representative(/').  And  the  Court  of  Common  Pleas  will  not  suffer 
such  a  bill  to  be  taxed(,§-).     But  in  the  Court  of  King's  Bench  the 

(w)  Vid.  Cockerill  v.  Kynaston,  4  Jones,  3  Burr.  1151.     S.  C.  iBI.Rep. 

Term  Rep.  280.  451. 

(t«)  Higgsv.  Warry,  6T.  Rep.  654.  (c)  Ca.  Prac.  C.  B.  158.     Hawes  v. 

(x)  1  H.  Bl.  Rep.  566.  Saunders,  3  Burr.  1585.     1  H.  Bl.  217. 

(«/)  3    Bac.    Abr.    100.     Jones   v.  {d)  Baynham  v.  Matthews,  2  Stni. 

Wilson,  11  Mod.  256.     Vid.  Cockerill  871.     Barnes,  133.     Bennet  v.  Coker, 

V.  Kynaston,  4  Term  Rep. 280.  4  Burr.  1927.     Say.  Costs,  96,  97. 

(z)  3  Bac.  Abr.  100.     Gregg's  case,  (e)  Tidd's  Prac.  B.  R.  694.    Bennet 

2  Salk.  596.     Cruchfield  v.  Scott,  2  v.  Coker,  4  Burn.  1928.     Barnes,  130. 

Stra.  796.  Booth  v.  Holt,  2  H.  Bl.  277. 

(a)  Tidd's  Prac.   B.  R.  379,  380.  (/)  Tidd's  Prac.  B.  R.919.  1  Bar- 

895.    Ca.  Pr.   C.   B.    14.    157,    158.  nard.  K.   B.  433.     Andr.  276.     Ca. 

Hawes  v.    Saunders,   3   Burr.    1584.  Prac.  C.  B.  58. 

Hio-o-s  V.  Warry,  6  Term  Rep.  654.  (g)  Tidd's  Prac.  B.  R.  919.  Barnes, 

(T)  Tidd's  Prac.    B.  R.  606,  607.  119.  122. 
895.  Ca.    Pr.    C.   B.  79.     Harris  v. 

(1)  An  executor  or  administrator  is  liable  for  costs  in  error  only  in  cases  where  he 
would  be  subject  to  costs  in  the  court  below.    Gleason  v.  Clark,  Adm.  1  Wend.  llep.  .'503. 

(2)  Rudd  et  al.  Ex.  v.  Long,  4  Johns.  Rep.  190,  'id  edit.;  and  the  reporter's  note.  Con- 
tra, Fiink  V.  Luyten,  VanderoWs  Ex.  v.  iVMlner,  2  Bay,  IGC.  3'J'J. 

(3)  Per  Curiam,  2  Bay,  400.  Broimi,  Ex.  v.  Lambert,  10  Jolms.  Rep.  148.  So  also 
in  the  case  of  a  scire  facias  to  revive  a  jud};ment  obtained  by  tiie  testator,  an  executor  is 
liable  to  tlie  costs  of  a  non  pros  for  not  proceeding  to  trial,  llogcboom,  Ex.  v.  Clark,  17 
Johns.  Rep.  268.  So  also  the  costs  of  an  unsupported  action.  Jlardij  v.  Call,  10  Mass. 
Rep.  530. 

(4)  J^Iusser,  Jldm.  v.  Good,  1 1  Scrg.  k  Rawle,  '247. 

38 


441  OF  REMEDIES  FOR  [iJOOK  III. 

practice  is  different;  for  tlierc  tlie  bill  may  he  referred  to  be  taxed, 
on  the  defendant's  undertaking  to  pay  what  is  duc(/i).  Yet  where 
an  attorney  delivered  his  bill,  and  ai'ter  his  death  application  was 
made  to  tax  it,  and  above  a  sixth  part  was  taken  off;  on  motion  that 
the  executrix  may  pay  the  costs,  the  court  held  her  not  to  be  liable, 
since  the  act  imposes  them  on  the  attorney  or  solicitor  only,  and  an 
executor  is  not  to  blame  if  he  stand  on  the  testator's  bill,  or  make  out 
one  from  his  books(/). 

Where  the  plaintiffdies  after  final  judgment,  and  before  execution, 
[442]  his  executor  or  administrator  shall  sue  execution  by  scir-e  fa- 
cias{k).{\ )  If  after  a  fieri  facias  sued  out  the  plaintiff  die,  the  she- 
riff deriving  his  authority  from  the  writ  may  levy  the  money,  and 
may  pay  it  to  the  executor;  or  in  case  the  plaintiff  died  intestate,  it 
shall  be  brought  into  court,  and  remain  there  until  administration  be 
committed,  when  the  administrator,  on  producing  the  grant,  shall  re- 
ceive it(/).  So  if  under  ii  feri  facias  the  goods  are  seized,  and  the 
plaintiff  die  before  sale,  and  then  the  goods  are  sold,  the  executor  or 
administrator  shall  have  the  money;  nor  shall  it  be  a  sufficient  return 
to  state  that  the  plaintiff  is  dead,  for  that  is  no  abatement  of  the 
writ(wz).(2) 

At  common  law  the  death  of  the  plaintiff  at  any  time  before  final 
judgment  abated  the  suit;  but  by  stat.  17  Car.  2.  c.  8,(3)  if  either 
party  die  between  verdict  and  judgment,  his  death  shall  not  be  al- 
leged for  error,  so  as  the  judgment  be  entered  within  two  terms  after 
the  verdict(?i).  In  the  construction  of  this  statute  it  has  been  holden, 
that  the  party's  death  before  the  assizes  is  not  remedied;  but  if  he 
die  after  the  assizes  are  commenced,  although  before  the  trial,  that 
[443]  case  is  within  the  act,  for  being  remedial  it  shall  be  construed 
liberally  (o).  The  judgment  on  this  statute  is  entered  as  if  the  party 
were  alive(/?),  and  it  must  be  entered,  or  at  least  signed(§'),  within 

{h)  Tidd's  Prac.  B.  R.  919.  Gregg's  (m)  Clerk  v.  Withers,  6  Mod.  297. 

case,  1  Salk.  89.     Weston  v.  Poole,  2  Cleve  v.  Vere,  Cro.  Car.  459.     Harri- 

Stra.    1056.     Say.    Costs.  321,   325.  son  v.  Bowden,   1  Sid.  29.     2  Lord 

Imp.  K.  B.  482.  Raym.  1073. 

(0  Tidd's  Prac.  B.  R.  919.     Wil-  (n)  Tidd's  Prac.  B.  R.  842.  1052, 

son   V.    Poole,   2    Stra.    1056.     Say.  1053. 

Costs.  327.  (o)  Tidd's  Prac.  B.  R.  8 12.     Anon. 

{k)  Conn.  Dig.  Execution,   E.     2  1  Salk.  8;  and  vid.  2  Ld.  Raym.  1415, 

Inst.  295.  See  Tidd's  Prac.  B.  R.  1056,  in  note.     Jacobs  v.  Miniconi,  7  Term 

(Z)  Clerk  V.  Withers,  6  Mod.  297.  Rep.  31. 

Noy,  73.     Dyer,  76  b.     Tidd's  Prac.  (/;)  Weston  v.  James,  Salk.  42. 

B.  R.  932,  933.  (ry)   1  Sid.  385.     Barnes,  261. 

(1)  In  Pennsylvania,  on  the  death  of  the  plaintiff  after  judgment,  and  the  suggestion 
thereof  on  the  record,  his  executor  or  administrator  may  issue  execution  without  scire 
facias.     Deiser,  Adm.  v.  Sterling,  \Q  Serg.  &  Kawle,  119. 

(2)  In  Pennsylvania,  it  is  the  universal  practice  to  issue  a  venditioni  exponas  after  ex- 
ecution levied  on  land,  though  both  parties,  plaintiff  and  defendants,  are  dead,  without 
calling  in  tlieir  representatives.  Kriderx.  Dcklune,  Sup.  Court,  Dec,  Term,  18iU,  sta- 
ted 13  Serg.  8c  Rawle,  147. 

(.3)  In  force  in  Pennsylvania,  o  Binn.  624.     Roberts'  Dig.  39. 


CHAP.  X.]  EXECUTORS  AT  LAW.  443 

two  terms  after  the  verdict.  But  there  must  be  a  scire  facias  to 
revive  it,  before  execution  can  be  taken  out(?*);  and  such  scire  facias, 
pursuing  the  form  of  the  judgment,  should  be  general,  as  on  a  judg- 
ment recovered  by  or  against  the  party  himself(5). 

By  a  subsequent  statute(^)  if  the  plaintitf  die  after  interlocutory, 
and  before  the  final  judgment,  the  action  shall  not  abate,  if  such  action 
might  originally  have  been  sued  by  his  executor  or  administrator; 
but  the  executor  or  administrator  may  have  a  scire  facias  ^'goCm'S.iihQ 
defendant;  oi',  if  he  die  after  such  interlocutory  judgment,  against  his 
executor  or  administrator.  And  if  the  defendant,  his  executor,  or 
administrator,  appear,  and  show  no  cause  to  arrest  the  final  judgment, 
or  on  a  scire  facias  or  two  nihils,  make  default,  a  writ  of  inquiry 
shall  go,  and  being  executed  and  returned,  judgment  final  shall  be 
given  against  the  defendant,  or  against  his  executor  or  administrator. 
This  statute  has  been  held  not  to  extend  to  cases  where  the  party  dies 
before  interlocutory  judgment,  although  it  be  after  the  expiration  of 
the  rule  to  plead(w). 

Where  either  party  dies  after  interlocutory  judgment,  and  before 
the  execution  of  the  writ  of  inquiry,  the  scire  Jacias  on  this  statute 
[444]  ought  to  be  for  the  defendant,  or  his  executor  or  administrator, 
to  show  cause  why  the  damages  should  not  be  assessed,  and  recovered 
against  him(i'),  and  to  hear  the  judgment  of  the  court  thereupon('io). 
But  where  the  death  happens  after  the  writ  of  inquiry  is  executed, 
and  before  the  return,  the  scire  facias  must  be  to  show  cause  why 
the  damages  assessed  by  the  jury  should  not  be  adjudged  to  the 
plaintiflf  or  his  executor  or  administrator(.r). 

The  judgment  on  this  statute  is  not  entered  for  or  against  the  party 
himself,  as  on  the  stat.  17  Car.  2.,  but  for  or  against  his  executor  or 
administrator(y).  And  where  the  defendant  dies  after  interlocutory 
and  before  final  judgment,  two  writs  of  scii^e  facias  must  be  sued 
out,  before  he  can  have  an  execution;  one  before  the  final  judgment 
is  signed,  in  order  to  make  the  executor  or  administrator  a  party  to 
the  record:  the  other  after  final  judgment  is  signed,  in  order  to  give 
him  an  opportunity  of  pleading  no  assets,  or  any  other  matter  of  de- 
fence; for  it  were  unreasonable  that  the  situation  of  the  executor  or 
administrator  should  be  worse,  where  the  party  deceased  die  before 
the  final  judgment  was  signed,  than  it  would  have  been  if  his  death 
had  been  subsequent(2'). 

Whether  an  executor  of  a  deceased  partner  must  or  can  join  with 
[445]  the  survivor  in  an  action  for  goods  carried  away,  or  money 
had  and  I'oceived  in  the  testator's  lifetime,  I  have  already  stated  to 
have  been  a  matter  of  some  doubt;  but  it  seems  now  settled  that  the 

('/•)  Karl  V.  Brown,  1  Wils.  302.  (r)   Lil.  Kiitr.  617. 

(*)  Colebeck  v.  Peck,  2Ld.Kuym.  (w)  iSniilli  v.  Harman,G  Mod.  111. 

1280.  (x)  Goltisvvortliy    v.    Soiitlieote,    1 

(/)  Stat.  8&'JW.   3.  c.   11,  e.G.  Wils.    213;    and    vid.    Executors    of 

Vid.    Com.    Dig.  Admon.    (G.)    and  Wri^rUt  v.  Nutt,  1  Term  Rc\>.  388. 

Hollingshuad's  case,  1  P.  Wms.  711.  (y)  Weston  v.  Jame.s,  1  Salk.  ]-2. 

(u)  Tidd's  Prac.  B.  II.  1055.  Wal-  (:)  Say.  Uep.  2(Ui. 
\<>l>  V.  Irwin,  1  Wils.  315. 


445  OF  REMEDIES  FOR  [bOOK  III. 

latter  must  sue  alone,  as  the  remedy  survives,  although  there  be  no 
survivorship  of  the  duty(«). 

Before  the  stat.  31  Geo.  3.  c.  S7,  an  infant  of  tlic  age  of  seventeen 
was  capable  of  taking  out  probnte,  and  therefore  of  maintaining  an 
action  as  executor;  but,  during  his  minority,  he  was  obliged  to  sue  by 
guardian,  or  prochcin  amy;  and  could  not  sue  by  attorney. 

But  as,  by  this  statute,  probate  shall  not  be  granted  to  him  till  he 
shall  have  attained  the  full  age  of  twenty-one  years;  he  cannot  in  his 
representative  capacity  sustain  an  action  before  that  period. 

If  a  married  woman  be  executrix,  the  husband  cannot  sue  in  right 
of  the  testator  without  the  wife(6). 

An  executor  named  during  the  minority  of  another,  has  the  same 
right  to  bring  actions  as  an  absolute  executor (c.) 

[44G]  As  executors,  in  tlieir  representation  of  the  testator,  make 
but  one  person,  they  must  all  join  in  the  bringing  of  actions  in  his 
right(c?);(l)  although  some  have  omitted  to  prove  the  will,  or  have 
even  refused  before  the  ordinary(e). 

If  an  infant  be  co-executor  with  other  persons  of  full  age,  he  must, 
I  apprehend,  join  with  them  in  an  action,  and  they  shall  all  together 
sue  by  attorney;  for  such  was  the  law  before  the  statute  with  regard 
to  an  infant  under  the  age  of  seventeen(y). 

If  A.  and  B.  be  appointed  executors,  and  A.  refuse  to  join  in  such 
action,  B.  may  commence  the  action  in  the  names  of  them  both;  and 
then,  on  summoning  A.,  there  shall  be  judgment  of  severance;  that 
is  to  say,  that  B.  shall  sue  alone;  or  on  A.'s  default  on  the  summons, 
there  shall  be  the  same  judgment;  and  B.  then  may  proceed  in  the 
action,  and  recover  in  his  own  name  only:  otherwise,  a  co-executor 
by  collusion  with  the  debtor  might  prevent  his  being  sued  for  the 
debt(^).(2)  By  the  death  of  the  party  severed,  the  writ  shall  not 
abate(A).  Nor,  if  he  live  till  judgment,  can  he  sue  out  execution, 
because  the  recovery  is  in  the  name  of  the  other  executor  alone(i). 

(a)  Supr.  155,  156.  163.  (/)  3  Bac.  Abr.  618.     1  Roll.  Abr. 

{b)  Com.  Dig.  Admon.  D.  Off.  Ex.  288.     Cro.  Eliz.  278.     2  Saund.  Fox- 

207,  208.  wist  v.  Tremaine,  212,  213.     S.  C.  1 

(c)  Cora.  Dig.  Admon.   F.   Semb.  Ventr.  102.     S.  C.  1  Sid.449.     Coan 

Ofl:  Ex.  215,  216.  V.  Bowles,  Carth.  124. 

{d)  3  Bac.  Abr.  32.     Off.  Ex.  42.  (g)  3  Bac.  Abr.  33.     Pricev.  Pack- 

95.100.     Godolph.  134.  hurst,  Cro.  Car.  420.     2  Roll.  Abr.  98. 

(e)  Off.  Ex.  42.     Com.  Dig.  Abate-  Off.  Ex.  98,  99. 

meat,  E.  13.     Pleader,  2  D.  1.  9  Co.  (/«)  Anon.  Cro.  Eliz.  652.     Co.Litt. 

37.  Swallow  V.  Emberson,  i  Lev.  161.  139. 

Vid  supr.  41.  45.  («)  Off.  Ex.  105.  106. 

(1)  And  one  administrator  cannot  sue  his  co-administrator,  on  a  bond  executed  by  the 
latter  to  the  intestate;  uor  will  it  enable  him  to  sue  if  he  assign  the  bond  to  a  creditor  of 
the  intestate,  and  obtain  from  him  a  re-assignment  to  himself.  Siino7i,  Jidm.  v.  Albright, 
12  Serg.  k  Rawle,  429. 

(2)  If  one  of  two  co-executors  direct  an  appeal,  writ  of  error,  or  supersedeas,  origi- 
nally granted  to  them  both,  to  be  dismissed,  tlie  other  may  proceed  without  him;  and  since 
both  are  before  the  court,  awarder  of  severance  may  be  made  without  a  summons.  Reno, 
Hi:  V.  Davis,  4  Hen  k  Munf,  388. 


CHAP.  X.]  EXECUTORS  AT  LAW.  447 

[447]  If  a  judgment  be  recovered  hy  two  executors,  and  the  one 
prays  a  capias,  and  the  other  a  Jieri  facias;  it  has  been  said  the  ca- 
jnas  shall  be  awarded  as  most  beneficial  for  the  estate(A'). 

By  the  stat.  25  E.  3.  c.  5,(1)  the  executor  of  an  executor  is  put  on 
the  same  footing,  in  regard  to  the  bringing  of  actions,  as  an  imme- 
diate executor(/). 

An  executor  de  son  tort  is  not  entitled  to  bring  any  action  in  right 
of  the  deceased.  As  he  comes  in  by  wrong,  he  is  liable  to  all  the 
trouble  of  an  executorship  without  any  of  its  priyileges(?n).(2) 

An  administrator  may,  in  right  of  his  intestate,  maintain  actions 
in  the  same  manner  as  an  executor  in  right  of  his  testator(?i). 

All  special  and  limited  administrators  likewise  may  maintain  ac- 
tions in  right  of  their  respective  intestates.  And,  indeed,  the  prin- 
ciple on  which  the  ordinary  has  the  power  of  granting  such  adminis- 
trations, is,  that  there  may  be  a  person  capable  of  recovering  property 
belonging  to  the  estate(o). 

[448]  If  an  administrator  durante,  minoritate  bring  an  action 
and  recover,  and  then  his  administration  determine  by  the  executor's 
coming  of  age,  such  executor  may  have  a  scire  facias  on  the  judg- 
ment(7;). 

So  if  such  administrator  obtain  judgment,  he  may  bring  a  scire 
facias  against  the  bail,  nor  can  they  object  that  the  executor  has  at- 
tained the  age  of  twenty-one  years;  for  the  recognizance  is  to  the 
administrator  himself  by  name(§').  But  it  seems  to  be  a  question 
whether  in  such  case  he  or  the  executor  shall  sue  out  execution  on 
the  judgment(r). 

If  there  be  several  administrators,  they  must,  like  co-executors,  all 
join  in  an  action(5'). 

An  administrator  de  bonis  non,  claiming,  by  title  paramount, 
could  not  at  common  law  have  a  scire  facias,  or  otherwise  proceed 
on  a  judgment  recovered  by  an  executor,  or  administrator(^).(3) 
But  now  if  a  judgment  after  verdict  be  recovered  by  an  executor  or 

(A-)  3  Bac.Abr.  33,  in  note.    Foster  Mascal,  1  Lev.  181.     Coke  v.  Hodges, 

V.  Jackson,  Hob.  61.     Vid.  Hudson  v.  1  Vern.  25. 

Hudson,  1  Atk.  460.  (7)  3    Bac.   Abr.    18.     Eubrin    v. 

(/)  Vid.  Off.  Ex.  257.     Godb.  262.  Manpesson,  2  Lev.  37. 

\m)  2  Bl.  Com.  507.     Walker  v.  {r)  lb.  2  Lev.  37. 

Woolaston,  2  P.  Wms.  583;vid.  supr.  (s)  Coin.  Dig.  Abatement,  E.  14. 

366.  Pleader,  2  D.  10. 

{n)  Com.  Dig.  Admon.  B.  13.  Off.  (/)  Com.  Dig.  Admon.  G.  Levetv. 

Ex.  259.  Lewkenor,  Moore  4.     Yate  v.  Goth, 

(0)    Walker  v.   Woolaston,    2   P.  ib.  680.     Cro.   Jac.  4.     1  Roll.  Abr. 

Wms.  576.     6  Co.  67  b.  890,     Norgate  v.  Snape,  Wm,  Jones, 

{p)  3  Bac.  Abr.  18.     1  Roll.  Abr.  214.    Snape  v.  Norgate,  Cro.  Car.  167. 

888,  889.     Cro.  Car.  127.     HaUon  v.  Tidd's  Prac.  B.  R.  1057. 


(1)  In  force  in  Pennsylvania.     3  Binn.  611.     Roberts'  Di,;,'.  249. 

(2)  Jjee  V.  Wright,  1  llawlc,  151.    Nor  can  he  be  cited  to  account  before  tlie  Register. 
Peefjle'i  Jppeal,  15  Serg.  k  Rawle,  41. 

(3)  Grout,  JJdtn.  v.  Chamberlain,  4  Mass.  Rep.  Oil.  act: 


448  OP  REMEDIES  FOR  [j?OOK  III. 

administrator,  in  such  case  an  administrator  de  bonis  non  is  by  stat. 
17  Car.  2.  c.  8,(1)  entitled  to  sue  a  scire  facias,  and  take  outexecu- 
[•119]  tion  on  such  judgincnt.(2)  If  the  executor  or  administrator 
die  after  suing  out  the  writ  of  execution  and  before  the  return  of  it, 
the  administrator  de  boJiis  non  is,  by  the  equity  of  that  act,  permit- 
ted to  perfect  the  execution  thus  commenced,  for  the  right  is  de- 
volved upon  him(t^).(3)  And  in  such  case,  if  the  sheriff  return  a 
seizure  of  goods  to  the  value,  but  that  they  remain  in  liis  hands  pro 
dcfectu  C7nptorem,  the  administrator  de  bo?iis  non  may  sue  out  a 
vendiiioni  exponas,  or  distringas  nuper  vice  comifcm[tv).  If  at 
the  time  of  tbe  executor's  or  administrator's  death  the  money  be 
levied,  it  shall  be  brought  into  court,  and  the  administrator  de  bonis 
non,  on  producing  the  letters  of  administration,  shall  be  entitled  to 
receive  it(a,').  But  if  an  executor  bring  a  scire  facias  on  a  judgment, 
or  recognizance,  and  get  judgment  yi<o^  habeat  executiuneni,  and 
die  intestate,  the  administrator  de  bonis  non  must  bring  a  scire  fa- 
cias on  the  final  judgment,  and  cannot  proceed  in  the  judgment  on 
the  scire  facias{y).  The  statute  extends  only  to  judgments  after 
verdict(z).  On  any  other  judgment  obtained  by  the  executor  or  ad- 
ministrator, the  administrator  de  bonis  non  shall  not  have  a  scire  fa- 
cias for  want  of  privity,  but  must  resort  to  his  remedy  at  common 
law,  by  an  action  of  debt  de  novo  for  the  same  demand,  as  adminis- 
[450]  trator  to  the  first  testator  or  intestate(«).  Yet  even  on  a 
judgment  by  default,  if  the  executor  or  administrator  sue  out  execu- 
tion and  die  when  the  goods  are  in  the  hands  of  the  sheriff,  and  con- 
sequently the  writ  is  completely  executed,  the  administrator  de  bonis 
non  shall  have  the  money  brought  into  court,  and  on  showing  the 
grant  it  siiall  be  ])aid  over  to  him(Z').  Or  if  tbe  judgment  by  default 
be  for  goods  taken  out  of  the  executor's  or  administrator's  own  pos- 
session, his  executor  or  administrator  shall  have  a  scire  facias  upon 
it,  and  account  for  them  to  the  administrator  de  bonisnon(c).{4) 

(«)  Com.  Dig.  Admon.  G.  Clerk  v.  viban  v.  Lawrence,  2  Ld.Raym.  1019. 

Withers,  1  Salk.  322.     S.  C.  6  Mod.  (r)  Clerk  v.  Withers,  6  Mod.  296, 

290.    S.  C.  2Ld.  Raym.  1072.  Vid.  1  297. 

Sid,  29.  (a)  See  Com.  Dig.  Admon.  G.  Le- 

(w)  Clerk  V.  Withers,  1  Salk.  323.  vet  v.  Lewkenor,  Moore,  4.     Yaites  v. 

S.  C.  G  Mod.  295.  297,  298,  299.  S.  Gough,  G80.     Cro.  Jac.  4.     Yaites  v. 

C.  2  Ld.  Raym.  1074.  Gougli,  Yelv.  33.     5  Co.  9  b. 

(x)  Ibid.  6  Mod.  299,300.  lb.  2  Ld.  (//)  Clerk  v.  Withers,  G  Mod.  299, 

Raym.  1074.  1076.  300. 

(y)  Tidd's  Prac.  B.  R.  1058.    Tre-  (c)  Yaites  v.  Gough,  Yelv.  33. 


(1)  In  force  in  Pennsylvania.  3  Binn.  624.  Roberts'  Dig.  369.  See  also  Dale  v.  Eoo- 
seveli,  8  Cow.  Rep.  333.     Dykes  v.  Woodhuuse''s  ^icbn.  3  Rand.  Rep.  287. 

('2)  Or  maintain  an  action  of  debt  upon  it.  Dykes  \.  tVuodlwuse''s  Adm.  3  Rand.  Rep. 
287. 

(3)  So  he  may  have  a  writ  of  error  on  a  judgment  against  a  previous  executor  or  ad- 
ministrator.    Dale  \.  Roosevelt,  8  Cow.  Rep.  333. 

(4)  An  administrator  de  bonis  ?i07z  cannot  sue  the  representative  of  a  former  executor 
or  administrator,  either  at  law  or  in  equity,  for  assets  wasted  or  converted  by  the  first  ex- 


CHAP.  X.]  EXECUTORS  AT  LAW.  450 

In  case  a  party  died  seised  of  a  rent-service,  rent-charge,  rent- 
seek,  or  fee-farm,  in  fee-simple,  fee-tail,  or  per  auter  vie  in  the  life- 
time oi  cestui  que  vie,  the  common  law  afforded  no  remedy  to  recover 
the  arrears  due  at  the  time  when  the  owner  of  such  rents  died.  It 
was  therefore  enacted  by  the  stat.  32  H.  8.  c.  31{d),  that  the  execu- 
tors and  administrators  of  tenants  in  fee,  fee-tail,  or  for  life,  of  such 
rents,  may  have  an  action  of  debt  for  all  such  arrears,  or  may  distrain 
for  the  same  upon  the  lands  chargeable,  so  long  as  they  remain  in 
the  possession  of  the  tenant  who  ought  to  have  paid  the  rents;  or  of 
any  other  person  claiming  under  him  by  purchase,  gift,  or  descent. 
The  statute  also  provides,  that  a  tenant  per  auter  vie,  his  executors 
and  administrators,  may,  after  the  death  of  cestui  que  vie,  have  an 
action  of  debt,  or  may  distrain  for  such  arrears  [451]  incurred  in  the 
lifetime  of  cestui  que  vie. 

Before  the  passing  of  this  act,  the  inconvenience  did  not  exist  to 
the  same  extent,  in  regard  to  the  executor  of  tenant  for  his  own  life, 
or  to  the  executor  of  tenant  per  auter  vie  after  the  death  of  cestui 
que  vie:  for  by  the  common  law  an  executor  in  either  of  those  cases 
had  a  remedy,  by  action  of  debt,  for  the  arrears  of  rent  which  had 
accrued  in  the  lifetime  of  the  testator(e).  But  it  has  been  adjudged, 
that  the  statute,  being  remedial,  applies  to  the  executors  of  all  tenants 
for  life;  not  merely  to  such  executors  as  previously  to  the  statute 
had  no  remedy  whatever,  but  also  to  those  who  were  entitled  to  an 
action  of  debt,  to  whom,  therefore,  it  gives  merely  the  additional 
remedy  of  distress(/).  Yet,  although  the  executors  of  all  tenants 
for  life  be  authorized  by  the  statute  to  distrain  for  such  arrears(^),  it 
seems  that  rent  reserved  on  a  lease  for  years  is  not  within  its  provi- 
sions, inasmuch  as  the  landlord  is  not  tenant  in  fee,  fee-tail,  or  for 
life,  of  such  a  rent;  and  the  executors  of  such  tenants  only  are  men- 
tioned in  the  act(/i).  However,  in  trespass,  where  it  appeared  the 
defendant  had  distrained  the  plaintiff's  goods  for  rent  due  to  his  tes- 
tator on  a  lease  for  years,  Lee,  C.  J.  held  it  to  be  comprehended  by 
the  statute,  and  the  defendant  obtained  a  verdict(/). 

Nor  does  the  statute  extend  to  the  executor  of  the  grantee  of  a  rent- 
charge  for  a  term  of  years,  if  he  so  long  livc(A^);  nor  to  copyhold 
rents,  but  only  to  rents  out  of  free  land(/}. 

(<Z)  Vid.  3   Bac.   Abr.  91.     2  Bac.  (,^)  Hool  v.  Bell,  1  Ld.  Raym.  172. 

Abr.  282,  ia  note.     4  Burn.  Eccl.  L.  (h)  L.  ofNi.  Pri.5thedit.  57.  Gilb. 

268.  Ij-  of  Distress,  3d  edit.  34. 

(e)  Harg.  Co.    Litt.   1G2,  note   4.  (i)  Povvel  v.  Kiliick,  at  Westmin- 

Gilb.  L.  of  Distress,  3d  edit.  33.  stcr,  M.     25  Geo.  2. 

(/)  Harg.  Co.   Litt.   102  b.  note.  (/.■)  L.  of  Ni.  Pri.  5tli  edit.  57. 

Hool  V.  Bell,  1  Ld.  Raym.  172.     Cro.  (/)  2  Bac.  Abr.  5R2,  in  note.     Ap- 

j:iiz.  322.   L.  of  Ni.  Pri.  5th  edit.  55.  plcton  v.  Doily,  Yelv.  135.     Sed  vid. 

Gilb.  L.  of  Distress,  3d  edit.  33.    Sed  Cartli.  91. 
vid.  Cro.  Car.  471. 


CQUtor  or  administrator;  suoh  suit  may  be  broufjlil  <lircctly  Ity  creditors,  legatees  or  dis- 
tributees.    Coleman,  Adm.  v.  JWMiirdo,  5  Kaud.  lieii.  51. 


451  OF  REMEDIES  FOR  [bOOK  III. 

But  the  executor  of  an  executor  is  held  to  he  within  the  equity  of 
tliisstatute(w2). 

An  executor  may  also  prove  a  debt  due  to  the  testator  under  a 
commission  of  bankruptcy(;i). 

A  commission  was  taken  out  by  an  executor  before  he  had  ob- 
tained probate.  Probate  was  afterwards  obtained  on  the  5th  of 
March,  1817,  and  the  adjudication  of  the  bankruptcy  was  on  the  8th 
of  March  following,  and  the  commission  was  held  valid(o). 

In  case  a  commission  has  been  superseded,  the  executors  of  the 
party  against  whom  it  is  issued  may  take  out  a  commission  for  a  debt 
due  to  him;  but  if  it  has  not  been  superseded,  they  have  no  such 
right;  for  the  debt  having  vested  in  his  assignees,  the  executors  are 
incapable  of  being  the  petitioning  creditors(^;). 

Executors,  in  their  representative  character,  may  sign  a  bankrupt's 
certificate(5').  And  even  where  the  bankrupt's  father,  being  prin- 
[453]  cipal  creditor,  chose  himself  sole  assignee,  and  dying  intestate, 
the  bankrupt,  as  his  representative,  chose  himself  assignee,  and  signed 
his  OAvn  certificate,  it  was  held  regular(/').  But  an  executor,  who 
has  also  a  claim  in  his  own  right,  cannot  sign  in  both  capacities(,s). 

If  a  bankrupt's  estate  pay  a  clear  dividend  of  ten  shillings  in  the 
pound,  and  he  obtain  his  certificate  under  the  commission,  his  repre- 
sentatives are  entitled  to  the  allowance(/). 

By  the  stat.  19  Geo.  2.  c.  37,  s.  4,  it  is  enacted,  that  in  case  an 
assurer  shall  die,  his  executors  or  administrators  may  make  re-assur- 
ance to  the  amount  before  by  him  assured,  provided  it  be  expressed 
in  the  policy  to  be  a  re-assurance:  and  thus  a  fund  may  be  secured  to 
satisfy  the  insured  in  case  of  a  loss,  without  its  falling  on  the  estate 
of  the  deceased. 

In  case  of  the  death  of  a  person  insured  against  fire,  the  policy  of 
insurance  and  interest  therein  shall  continue  to  his  heir,  executor,  or 
administrator  respectively,  to  whom  the  property  insured  shall  belong, 
provided,  before  any  new  payment  be  made,  such  heir,  executor,  or 
administrator  shall  procure  his  right  to  be  indorsed  on  the  policy  at 
the  office,  or  the  premium  be  paid  in  the  name  of  the  heir,  executor, 
or  administrator(?«). 

(m)  Off,  Ex.  258.  1  Atk.  85. 

\n)  Ex  parte  English,  2  Bro.  Ch.  (r)  Ibid.  Green,  2G0. 

Rep.  610.  (s)  Ex  parte  Sausmerez,  1  Atk.  85. 

{())  Ex  parte  Paddy  in  re  Drakely,  (/)  Whitmarsh's  B.  L.  2d  edit.  351. 

3  Madd.  Rep.  241;  and  see  Rogers  v.  Ex  parte  Calcot,  1  Atk.  208,  209.  S. 

James,  2  Marshall,  425.  C.  3  Atk.  814. 

(p)  Ex  parte  Goodwin,  1  Atk.  100.  («)  Park  on  Insurance,  449,  5th  ed. 

(//)  Whitmarsh's  B.  L.  2d  edit.  356. 


CHAP.  X,]  EXECUTORS  IN  EQUITY.  454 

[454]  Sect.  II. 

Of  remedies  for  executors  and  administrators  in  equity. 

An  executor  or  administrator  is  also  entitled  to  all  the  equitable 
interests  of  the  deceased,  and  may,  in  his  representative  capacity, 
enforce  them  in  a  court  of  equity(a). 

Such  interest  vested  in  the  testator  shall  vest  in  the  executor,  al- 
though he  be  not  named:  as  if  a  legacy  be  given  to  A.  and  if  he  die 
under  age,  to  B.  and  C,  or  the  survivor  of  them;  and  first  B.  die, 
then  C,  and  lastly  A.  die  under  age,  the  legacy  shall  be  decreed  to 
the  executor  of  C.  who  survived  B.(6). 

Partners  in  trade  are  interested  in  the  whole  stock  and  effects,  not 
merely  in  that  particular  stock  in  being  at  the  time  of  entering  the 
partnership,  but  continue  so  through  all  its  changes.  In  case  of  the 
death  of  one  partner,  his  interest,  as  we  have  seen(c),  at  law  vests  in 
his  representatives,  and  shall  not  survive  to  the  other,  although  the 
legal  remedy  survive:  in  equity,  the  survivor  is  regarded  as  a  trustee 
for  them,  on  which  footing  the  account  shall  be  taken,  nor  any  thing 
considered  as  his  share  till  after  it;  inasmuch  [455]  as  the  property 
in  the  stock  continues  in  such  representatives;  and  they  have  a  spe- 
cific lien  upon  it,  although  the  survivor  should  afterwards  die  or 
become  bankrupt(c?).  The  representatives  of  a  deceased  partner,  or 
the  assignees  of  a  bankrupt  partner,  are  not,  strictly  speaking,  part- 
ners with  the  survivor,  or  the  solvent  partner;  but,  in  either  case, 
that  community  of  interest  still  subsists,  which  is  necessary  till  the 
affairs  are  wound  up,  and  which  requires  that  what  was  partnership 
property  before,  shall  continue  so  for  the  purpose  of  distribution,  ac- 
cording to  the  rights  of  the  partners(e).(l) 

If,  pending  a  suit,  the  plaintiff  die,  his  executor  may  continue  it 
by  bill  of  revivor,  and  have  the  full  benefit  of  the  proceeding(/"). 

The  executor  of  a  person  having  written  private  letters  to  J.  S. 

(a)  Vid.  Com.  Dig.  Chancery,  2  B.  (c)  Supr.  155, 15G.  163. 

1.     3  G.  1.  ((/)  West  V.  Skip,  1  Ves.  242. 

(i)  Cora.    Dig.    Chancery,    3    G.  (e)  Ex  parte  Williams,  11  Ves.  jun.  5. 

Anon.  2  Ventr.  347.  (/)  Mitf.  63,  64. 


(1)  In  Pennsylvania,  when  a  surviving  partner  dies  indebted  to  partnership  and  sepa- 
rate creditors,  and  leaving  in  the  hands  of  his  administrator  joint  property,  and  also  se- 
parate property,  his  whole  estate,  that  is  to  say,  his  whole  separate  property  and  his  whole 
interest  in  the  joint  property,  isto  be  divided  among  all  his  creditors  (joint  and  separate), 
of  equal  degree,  equally, />ro  ra/a.  Jiell,  Ex.  v.  J\'ewman,  Jldm.  5  Herg.  h  liawle,  78. 
See  Sperry''8  Estate,  1  Ashm.  Rep.  347.  In  such  a  case  in  Soutli  Carolina,  co-partnership 
funds  are  first  applicable  to  co-partnership  debts,  and  private  funds  to  private  debts. 
Woddrop  v.  Ward,  Ex.  3  Desaus.  Rep.  203.  Hall  v.  Jlall,  2  M'Coril's  Cha.  Rep.  302. 
39 


455  OF  REMEDIES  FOR  [bOOK  III. 

may  maintain  a  bill  in  equity  to  restrain  J.  S.  or  his  representatives 
from  publishing  them  without  the  leave  of  the  plaintifr(,ii-). 

If  the  executor  find  the  affairs  of  the  testator  so  complicated,  as  to 
render  the  administering  of  the  estate  unsafe,  he  may  institute  a  suit 
against  the  creditors,  for  the  purpose  of  liaving  their  several  claims 
adjusted  by  the  decree  of  the  court(A.)  But  such  bill  will  not  entitle 
him  to  an  injunction  to  restrain  any  creditor  from  proceeding  against 
him  at  law:  for  that  purpose,  it  is  necessary  that  there  be  a  suit  and 
decree,  by  and  on  behalf  of  the  creditors  of  the  testator(2). 

A  decree  against  him  in  such  suit  to  account  is,  however,  suffi- 
cient to  ground  such  an  application;  and  therefore,  if  after  such  de- 
cree a  creditor  of  the  testator  proceed  at  law,  the  executor  may 
[456]  move  that  the  creditor  rnay  be  restrained  from  thus  proceed- 
ing, and  be  directed  to  come  in  under  the  decree,  and  prove  his  debt 
before  the  master  with  the  other  creditors  of  the  testator:  but  an  af- 
fidavit by  the  executor,  that  he  had  paid  all  the  assets  into  court,  is  in- 
dispensably necessary  to  support  the  motion,  and  such  creditor  shall 
be  allowed  the  costs  of  his  proceedings  at  law  before  actual  notice  of 
the  decree(A^).  If  he  proceed  at  law  after  such  notice,  he  shall  be  sub- 
ject to  the  costs  of  the  subsequent  proceedings(/).  If  the  creditor 
proceeding  at  law  has  recovered  a  judgment  de  bonis  testatoris,  the 
court  will  restrain  him  from  taking  out  execution;  but  if  he  has  ob- 
tained a  verdict  which  will  entitle  him  to  a  judgment  de  bonis pro- 
priis  against  the  executor,  the  court  will  not  restrain  him  from  pro- 
ceeding at  law(?w). 

However,  in  a  later  case,  where  after  a  decree  for  the  administra- 
tion of  assets,  an  executor  pleaded  a  false  plea  to  an  action  brought 
against  him  by  a  creditor  of  the  testator,  in  order  that  he  might  have 
an  opportunity  to  apply  for  an  injunction  to  restrain  the  action,  Sir 
J.  Leach,  V.  C.  granted  the  injunction,  and  said,  he  considered  the 
law  to  be  settled  according  to  the  doctrine  laid  down  by  Lord  Mans- 
field in  Harrison  v.  Beccles,  cited  in  Irving  v.  Peters,  3  T.  R.  688, 
that  an  executor  who  pleaded  plenl.  administravit,  was  liable  only 
to  the  extent  of  assets  of  the  testator  come  to  his  hands(w).(l) 

It  is  a  general  principle,  that  an  executor  shall  have  no  allowance 

(g-)  Thompson  v.  Stanhope,  Ambl.  William  Grant,  M.  R.  sitting  for  Lord 

737.  Eldon,  C.  and  afterwards  in  the  same 

(A)  Com.  Dig.  Chancery,  3  G.  6.  2  term  before  Lord  Eldon,  C.     See  also 

Fonbl.  2d  edit.  408,  note  (t).     Bucele  Kenyon  v.  Worthington,  Dick.  Rep. 

v.  Atleo,  2  Vern.  67.  C68. 

(i)  2  Fonbl.  ibid.     Rush  v.  Higgs,         (m)  Terrewest  v.  Featherby,  2  Meri. 

4  Ves.  jun.  638.  Rep.  480,   and   Brook  v.  Skinner,  in 

(A;)  Gilpin  v.  Lady   Southampton,  note. 
18  Ves.  469,  and  see  Jackson  v.  Leaf,  (n)  Fielden  v.  Flelden,  1  Sim.  & 

1  Jac.  &  Walk.  229.  Stu.  255,  and  see  Dyer  v.  Kearsley,  2 

(/)  Potts  V.  Layton,   Extx.  Mich.  Menv.    482,    in    note,   and   Lord   v. 

T.  1802,   at  Westminster,  before  Sir  Wormleighton,  1  Jacob,  148. 


(1)  Siglar  et  al.  J)dni.  v.  Jftiijivood,  8  Wheal.  Hep.  C75. 


CHAP.  X.]  EXECUTORS  IN  EQUITY.  456 

in  equity  for  his  trouble  in  the  execution  of  the  trust  reposed  in 
him,  unless  directed  by  the  will(n);(l)  and  least  of  all  where  a  le- 
gacy is  expressly  left  him  as  a  recompence.  Nor  is  the  case  altered 
by  his  renunciation  of  the  executorship,  and  his  afterwards  assisting 
in  it;  nor  although  it  appear  that  he  has  deserved  more,  and  has 
benefitted  the  estate  to  the  prejudice  of  his  own  affairs(o).  And 
even  where  an  executor  in  trust,  who  had  no  legacy,  in  a  case  in 
which  the  execution  of  the  office  was  likely  to  be  attended  with  trou- 
ble, at  first  declined,  but  afterwards  agreed  with  the  residuary  lega- 
tee, in  consideration  of  a  hundred  guineas,  to  act  in  the  executorship; 
and  on  his  dying  before  the  execution  of  the  trust  was  completed, 
[457]  his  executors  filed  a  bill  to  be  allowed  that  sum  out  of  the 
trust  money  in  their  hands,  the  court  refused  the  claim,  observing, 
that  independently  of  the  executor's  having  died  before  the  trust  was 
executed,  such  bargains  ought  to  be  discouraged,  as  tending  to  dissi- 
pate the  property(jo).  But  an  executor  in  India  of  a  party  domi- 
ciled in  that  country,  not  having  a  legacy,  was  held,  on  passing  his 
accounts  in  the  Court  of  Chancery  here,  to  be  entitled  to  a  commis- 
sion at  the  rate  of  five  joer  cent  on  receipts  and  payments,  according 

(ji)  11  Vin.  Abr.  433.    Robinson  v.  (o)  Robinson  v.  Pett,  3  P.  Wms. 

Pett,   3   P.   Wms.   251.     Ellison  v.  249. 

Airey,   1  Ves,    115.     Scattergood  v.  (jo)  Gould  v.  Fleetwood,  Mich.1732, 

Harrison,  Mosel.  128.     Vid.  Barwell  at  the  Rolls,  cited  3  P.  Wms.  251, 

V.  Parker,  1  Ves.  365.  note  {a). 

(1)  In  Pennsylvania,  so  far  back  as  the  testamentary  law  can  be  traced,  executors  have 
had  a  compensatioa  for  services  (3  Binn.  560).  The  act  of  March  27th,  1713  (Purd.  Dig. 
610;  1  Dall.  Laws,  98;  1  Sm.  Laws,  81),  establishing  Orphans'  Courts,  provides  that  the 
Orphans'  Court  may  "order__the  payment  of  such  reasonable  fees  for  copies  [of  bonds, 
inventories,  accounts,  actings  and  proceedings  whatsoever  of  guardians,  trustees,  tutors, 
executors  and  administrators]  and  for  all  other  charges,  trouble  and  attendance,  which  any 
officer,  or  other  person,  shall  necessarily  be  put  to  in  the  execution  of  this  act,  as  they 
shall  think  equitable  and  just."  This  act  has  always  been  construed  as  allowing  com- 
missions to  executors  and  administrators  {Prevost  v.  Gratz,  3  Wash.  C.  C.  Rep.  434), 
whose  right  to  commissions  is  so  well  established,  that  they  must  release  them  in  order  to 
become  witnesses.  Anderson  \.  JVef,  11  Serg.  &  Rawle,  208.  Gebhardv.  SM7idle,\5 
Serg.  &  Rawle,  235.  Patton  v.  Mi,  7  Serg.  &  Rawle,  1 16.  The  amount  of  commissions 
is  a  matter  in  the  discretion  of  the  court  [Pusey  v.  Clemson,  9  Serg.  8;;  Rawle,  204),  and 
the  number  of  the  executors  does  not  make  any  difference  in  the  rate:  if  tlieir  ti-ouble  be 
unequal,  a  share  of  the  commissions  ought  to  be  assigned  to  each,  proportioned  to  his  trou- 
ble.    Case  of  Walker's  Estate,  9  Serg.  &  Rawle,  223. 

In  Maryland,  by  statute,  the  commission  to  be  allowed  to  an  executor  or  administrator 
is  submitted  to  the  discretion  of  the  Orphans'  Court,  and  is  not  to  be  under  five  per  cent 
nor  exceeding'ten  per  cent  on  the  amount  of  the  inventory.  JVichok  v.  Hodges,  1  Peters' 
S.  C.  Rep.  562. 

In  New  York,  previous  to  the  act  of  15th  April,  1817,  an  executor  was  not  entitled  to 
any  compensation  for  his  services:  that  act  authorizes  the  Court  of  Chancery  to  make  an 
allowance  to  executors  and  administrators  for  their  services  according  to  a  fixed  rat6,  and 
to  fix  that  rate;  but  does  not  authorize  the  court  to  make  a  siKxial  allowance  without  re- 
gard to  a  fixed  rate.  M'Whorter  v.  Benson,  1  Hopk.  Cha.  Rep.  28.  7  Johns.  Cha.  Rep. 
page  266  of  the  Index. 


457  OF  REMEDIES  AGAINST  [bOOK  III. 

to  the  practice  in  lnd\a.(q).  So  where,  after  goods  were  consigned 
to  a  factor,  the  principal  died,  having  appointed  him  executor,  and 
then  the  goods  came  to  his  hands,  it  was  decreed  that  he  should  be 
allowed  factorage  and  commission  for  them(r).  If,  however,  an 
executor  in  India  has  a  legacy  for  his  trouble,  he  will  not  be  entitled 
to  commission,  either  on  his  receipts  or  payments  as  executor;  nor 
will  he  be  allowed  in  passing  his  accounts,  after  a  series  of  years,  to 
renounce  his  legacy,  and  charge  commission  on  such  receipts  and 
payments(5). 

If  two  executors  are  plaintiffs  in  equity,  and  one  of  them  is  ex- 
communicated, the  other  may  be  severed,  and  the  defendant  shall 
answer  him(^).  One  executor  may  sue  his  co-executor  in  equity(ti). 
In  case  of  a  suit  by  co-executors,  the  proceedings  do  not  abate  by  the 
death  of  one  of  them(y). 

If  a  temporary  executor  prove  the  will,  and  afterwards  his  execu- 
[458]torship  determine,  the  subsequent  executor  may  maintain  a  suit 
without  another  probate(?fj). 

An  administrator  shall  be  relieved  in  chancery  against  a  fraud  to 
his  administration:  as  if  the  grant  be  wrongfully  obtained,  and  after- 
wards repealed  on  citation,  an  assignment  of  a  term  by  the  grantee 
in  trust  for  himself  shall  be  revoked,  and  avoided  by  the  subsequent 
administrator(a:). 

If  a  bill  be  brought  by  an  administrator  durante  minoritate,  and 
pending  the  suit  the  executor  come  of  age,  he  may  continue  the  suit 
by  a  supplemental  bill(y). 

In  case  an  administration  be  determined  by  death,  a  bill  of  revivor 
by  a  subsequent  administrator  has  been  admitted (z). 


Sect.  III. 
Of  remedies  at  law  against  executors  and  administrators. 

I  AM  now,  in  the  last  place,  to  treat  of  the  remedies  against  execu- 
[459]tors  and  administrators,  or  the  means  which  the  law  prescribes 
to  enforce  the  performance  of  their  various  duties. 

As  representatives  of  the  deceased  they  are  answerable,  whether 
expressly  named  or  not,  as  far  as  they  have  assets,  for  all  his  debts, 

(7)  Chetham  v.  Lord  Audley,  4  Ves.  {v)  Hinde's  Prac.  in  Chan.  47. 

jun.  72.  Iw)  Pract,  Reg.  2d  edit.  209.    1  Ch. 

(r)  Scattergood  v.  Harrison,  Mosel.  Ca.  265. 

128.  (x)  2  Ch.  Ca.   129.     Com.   Dig. 

(s)  Freeman  v.  Fairlie,  3  Meri.  Rep.  Chan.  2  B.  1. 

124.  (3/)  Mitf.  61. 

{{)  Prac.  Reg.  in  Chancery,  2d  edit.  (r)  Mitf.  61,  in  note.   Owen  v.  Cur- 

209.  zan,  2  Vera.  237.     2   Eq.  Ca.  Abr. 

(u)  Ibid.    Vid.  11  Vin.  Abr.  363.  3,4. 
365.    3  Bac.  Abr.  32. 


CHAP.  X.]  EXECUTORS  AT  LAW.  459 

covenants(l),  and  other  contracts(a).  An  executor  is  thus  liable  for 
all  debts  due  from  the  testator  by  judgment,  statute,  recognizance, 
obligation,  or  other  debts  by  record  or  specialty(6). 

So  an  action  of  debt  lies  against  the  executor  of  a  sheriff,  on  a  judg- 
ment recovered  against  the  testator,  for  an  escape(c). 

So  an  action  may  be  maintained  against  an  executor  on  other  infe- 
rior debts  of  record,  as  issues  forfeited,  fines  imposed  at  the  assizes, 
quarter  sessions,  by  commissioners  of  sewers,  or  bankrupts,  by  stew- 
ards in  leets,  or  the  ]ike[d). 

He  is  also  subject  to  an  action  on  the  testator's  obligation:  or  on 
his  covenant,  as  to  pay  rent(e),  or  to  repair  premises(y).  An  ex- 
ecutor may,  likewise,  be  sued  by  the  lord  of  the  manor  for  a  relief 
due  from  the  testator(^).  So  an  action  lies  against  an  executor  on 
[460]  simple  contract  of  the  testator,  either  in  writing  or  by  parol, 
either  express  or  implied;  as  on  bills  of  exchange  and  promissory 
notes,  debt  for  rent  on  a  parol  lease(A),  or  assumpsit  for  money  had 
and  received  by  the  testator  to  the  plaintiff's  use(/).  So  an  action 
may  be  maintained  by  a  gaoler  against  an  executor  for  provisions 
found  for  the  testator  in  prison(A;):  or  against  the  executor  of  a  she- 
riff, who  levied  money  on  z.  fieri  facias^  and  died  before  he  paid  it(/): 
or,  as  it  seems,  against  an  executor  on  a  collateral  promise  by  the 
testator(7/i),  as  where  he  promised  to  give  A.  a  sum  of  money  in 
consideration  that  he  would  marry  B. 

In  short,  in  all  cases  where  the  cause  of  action  is  money  due,  or 
a  contract  to  be  performed,  gain  or  acquisition  of  the  testator  by  the 
work  and  labour  or  property  of  another,  or  a  promise  of  the  testator, 
express  or  implied;  the  action  survives  against  the  executor.  But 
where  the  cause  of  action  is  a  tort,  or  arises  ex  delicto  supposed  to 
be  by  force  and  against  the  king's  peace,  there  the  action  dies,  as 
battery,(2)  false  imprisonment,  trespass,(3)  slander,  nuisance,(4)  di- 

(a)  3  Bac.  Abr.  95.     Off.  Ex.  117.  553. 

118.    Cro.    Car.    187.       Morgan    v.  (^)  Com.  Dig.  Adraon.  B.  14.   Noy, 

Greene,  Jon.  223.     Howse  v.  Web-  43,  44. 

ster,  Yelv.  103.     Dyer,  23.  {K)  Cora.  Dig.  Admon.  B.  14. 

(i)  Com.  Dig.  Admon.  B.  14.     Off.  (0  9  Co.  89  b.     10  Co.  77  b.   Cro. 

Ex.118.  Car.  294.     Plowd.  182. 

(c)  Dyer,  322.  {k)  9  Co.  87  b. 

\d)  Cora.  Dig.  Admon.  B.  14.    Off.  (/)   Cora.  Dig.  Adraon.  B.  14.     1 

Ex.  118.  Roll.  Abr.  921.     Jon.  430.     Mar.  13. 

(e)  Billinghurst  v.  Spearman,  Salk.  (to)  Com.  Dig.  Admon.  B.  14.     1 

297.   Sti.  387.  406.   Com.  Dig.  Cove-  Roll.  Rep.    14.      Cro.   Jac.  404.      3 

nant,  C.  1.  Bui.  2.  G.     Sti.   158.     Ow.   56,  57. 

(/)  Tilney  v.  Norris,  Carth.  519.  Palm.  329.    Jon.  16. 
S.  C.  Salk.  309.    S.  C.  Ld.  Raym. 


(1)  Harrison,  Ex.  v.  Sampson,  2  Wash.  Rep.  1.55. 

(2)  Miller  v.  Umbelmwer,  10  Surg,  k  Rawlc,  31. 

(.3)  Mchohon  v.  Elion,  Adm.  1.3  Serg.  k  llawle,  415. 
(4)  Hawkins  v.  Class,  1  Bibb's  Rep.  246. 


460  OF  REMEDIES  AGAINST  [bOOK  III. 

verting  a  watercourse,  escape,  or  on  a  penal  statute,  and  many  other 
cases  of  the  like  kintl(w). 

[4(jl]  Such  are  the  species  of  actions  which  survive  against  an 
executor,  or  die  with  the  person  on  account  of  the  cause  of  action. 
But  there  are  other  species  of  actions,  which  survive  or  die  in  res- 
pect oi  the  form. 

In  some  actions  the  defendant  could  have  waged  his  law,  as  in  debt 
on  a  simple  contract,  and  therefore  no  action  in  that  form  lies  against 
an  executor;  but  now  other  actions  are  substituted  in  their  room,  on 
the  very  same  cause,  which  survive  and  may  be  maintained  against 
him. 

No  action,  where  in  form  the  declaration  must  be,  quare  vi  el  ar- 
mis,  et  contra  jjacem,  or  where  the  plea  must  be,  that  the  testator 
was  not  guilty,  will  lie  against  an  executor.(l) 

On  the  face  of  the  record  the  cause  of  action  arises  ex  delicto,  and 
all  private  criminal  injuries,  or  wrongs,  as  well  as  all  public  crimes, 
are  buried  with  tlie  offender. 

But  in  most,  if  not  in  all  the  cases,  another  action  may  be  brought, 
which  will  answer  the  purpose.  An  action  on  the  custom  of  the 
realm,  against  a  common  carrier,  is  for  a  tort  and  supposed  crime; 
the  plea  is  not  guilty,  and  therefore  an  action  will  not  lie  against 
an  executor;  but  assu7npsit,  which  is  another  action  for  the  same 
cause,  is  maintainable.  So  if  a  man  take  a  horse  from  another,  and 
bring  him  back  again,  an  action  of  trespass  will  not  lie  against  the 
[462]  executor,  though  it  would  have  lain  against  the  party  him- 
self.(2)  But  an  action  for  the  use  and  hire  of  tlie  horse  will  lie 
against  the  executor(o).  Nor  is  the  executor  chargeable  for  the 
injury  done  by  his  testator  in  cutting  down  another  man's  trees;  but 
for  the  benefit  arising  to  the  testator  from  the  value  or  sale  of  the 
trees,  he  may  be  called  upon  to  answer(7j).  Nor  will  trover  lie 
against  an  executor  for  a  conversion  by  his  testator;(3)  for  in  that 
case  the  form  of  the  plea  is,  that  the  testator  was  not  guilty,  and  the 
issue  is  to  try  the  guilt  of  the  testator:  But  if  the  testator  sold  the 
property  in  his  lifetime,  his  executor  shall  be  charged  in  an  action 
for  money  had  and  received  by  the  testator  to  the  plaintiff's  use. 

The  fundamental  distinction,  then,  is  this:  If  it  is  a  sort  of  injury 
by  which  the  offender  acquires  no  gain  to  himself  at  the  expence  of 
the  sufferer;  as  for  example,  beating  or  imprisoning  a  man,  there  the 
person  injured  has  only  a  reparation  for  the  delictum  in  damages  to 

(n)  Com.  Dig.  Adraon.  B.  15.     Off.         (o)  Hambly  v.  Trott,  Cowp.  375. 
Ex.  127,  128.   3  JBl.  Com.  302.   Ham-         {j))  lb.  Cowp.  376. 
bly  V.  Trott,  Cowp.  375. 


(1)  JVicholson  V.  Elton,  Adm.  13  Serg.  &  Rawle,  416. 

(2)  Trespass  for  mesne  profits  of  laiul  recovered  in  ejectment  lies  against  an  executor 
in  Virginia.    Lee  v.  Cookers  Ex.  Gilm.  Rep.  331. 

(3)  Hench  v.  Meizer,  Ex.  6  Serg.  &  Rawle,  272. 


CHAP.  X.]  EXECUTORS  AT  LAAV.  462 

be  assessed  by  a  jury,  and  therefore  the  executor  is  not  liable:  But 
where,  besides  the  crime,  property  is  acquired  which  benefits  the 
testator,  an  action  for  the  value  of  the  property  shall  survive  against 
the  representative(§').(l) 

The  executor  is  also  liable  on  contracts  of  the  testator,  although 
[463]  the  cause  of  action  accrue  not  tiJl  after  his  death:  as  on  a  bond 
which  becomes  due:  or  a  note  payable  subsequently  to  thatevent(r). 

The  liability  of  an  executor  to  the  payment  of  rent  incurred  after 
the  testator's  death,  has  been  already  considered(.s). 

In  the  cases  which  I  have  been  enumerating,  the  executor  shall 
be  liable  only  to  the  amount  of  the  assets(/).(2)  The  judgment 
against  him  is  for  the  debt  or  damages,  to  be  levied  on  the  goods 
and  chattels  of  the  testator  in  the  hands  of  the  defendant,  if  he  have 
so  much  thereof  in  his  hands  to  be  administered(?^).  But  there  are 
cases  in  which  he  shall  be  personally  responsible,  de  bonis propriis; 
as  if  he  commit  any  of  those  acts  which  constitute  a  devastavit,  on 
its  being  duly  substantiated,  he  must  answer  out  of  his  own  estate 
for  the  value  of  what  he  has  wasted (a^).( 3)  An  executor  may  also 
make  himself  chargeable  in  his  private  capacity  to  the  plaintiff's  de- 
mands, by  pleading  a  plea,  the  falsehood  of  which  lies  in  his  own 
knowledge,  and  which,  if  true,  would  be  a  perpetual  bar  to  the  ac- 
tion(y);(4)  therefore  if  an  executor  plead  ne  ungues  executor,  that 
he  never  was  executor(r),  or  plead  a  release  made  to  himself  («),  and 
it  is  found  against  him;  the  judgment  shall  be  in  [464]  the  alterna- 
tive, de  bonis  testatoris,  et  si  nan,  de  bonis  propriis.     An  execu- 

{q)  Ibid.  Cowp.  376,  377.  Abr.  77.     Off.  Ex.  157.  164. 

(r)  Com.  Dig.  Pleader,  2  D.  2.  {y)  Off.  Ex.  85.     3  Bac.  Abr.  87. 

\s)  Vid.  supr.  278,  et  seq.  1  Roll.  Abr.  93.     Godolph.    98.     11 

(0  9  Co.  88  b.  Vin.  Abr.   388.     Howard  v.  Jemraet, 

(m)  Vid.  Tidd's  Prac.  B.  R.  941,  1  Bl.  Rep.  400. 

and  infr.  (=)   1  Roll.  Abr.  930.  933. 

{x)  Com.  Dig.  Admon.1. 3.    3  Bac.  (a)  Cro.  Jac.  671,  672. 


(1)  Latlimore  v.  Simmons,  13  Serg.  &  Rawle,  185. 

(2)  Iti  assumpsit  against  executors,  founded  upon  their  assumption  as  executors,  on  a 
consideration  ejiistiiig  in  the  lifetime  of  the  testator,  the  declaration  need  not  aver 
assets.    Malin  v.  Bull,  13  Serg.  &c  Rawle,  441. 

(3)  Wilson  V.  Long,  12  Serg.  &  Rawle,  58.  But  no  contract  arises  upon  a  de^jastavit, 
which  will  suppose  an  action  against  the  executor  personally,  nor  is  a  devastavit  a  tres- 
pass within  the  meaning  of  the  act  of  22  March,  1814  (Puril.  Dig.  4^0),  giving  jurisdic- 
tion to  justices  of  the  peace,  in  cases  of  trespass  for  injuries  committed  on  real  or  per- 
sonal estate.  Ibid. 

(4)  Siglar  v.  HayTuood,  8  AAHieat.  G75.  The  plea  of  plene  admimstravit,  tliough  not  sus- 
tained, is  not  necessarily  a  false  plea  within  his  own  knowledge;  an<l,  if  it  he  found, 
against  him,  tlie  verdict  ought  to  find  the  amount  of  assets  unadministered,  and  the  de- 
fendant is  liable  for  tlial  sum  only.  Ibid.  Nor  are  tlie  pleas  of  7io//,  assumpsit,  and  non 
assumpsit  infra,  &c.  pleaded  by  administrators,  tliough  found  against  llieni,  such  false 
pleas  as  will  subject  them  personally  to  costs.  Kvans,  Jldm.  v.  J'ierson,  1  Wend.  Rep.  30, 
See,  as  to  what  pleas  are  false  pleas,  Ousterhout  v.  /lardenburg-h,  VJ  Johns.  Rep.  '267. 


464  OF  REMEDIES  AGAINST  [bOOK  III. 

tor  may  also  make  himself  personally  liable  by  his  promise  to  pay 
a  debt  of  the  testator,  or  answer  tlamagos  out  of  his  own  cstate;(l) 
but  pursuant  to  the  statute  of  frauds,  such  promise,  or  some  note  or 
memorandum  thereof,  must  be  in  writing,  and  signed  by  him  or 
some  other  person  by  his  authority(Z»).(2)  There  must  also  be  a  suf- 
ficient consideration  to  support  the  promise:  It  must  be  alleged 
and  proved,  that  assets  were  come  to  his  hands;  or  that  in  considera- 
tion the  creditor  would  forbear  to  sue  him,  he  promised  to  pay  the 
debt(c):  Or  an  admission  of  assets  must  be  implied  from  the  nature 
of  the  promise  itself;  as  where  the  defendant  owned  the  money  lay 
ready  for  the  plaintiff  whenever  he  would  call  for  ii{d):  and  where 
executors  gave  a  note  to  a  creditor  whereby  they  promised  "as  exe- 
cutors" to  pay,  &c.  with  interest(e).(3)  In  all  these  cases  the  execu- 
tor shall  be  liable  to  the  same  species  of  judgment.  Forbearance  to 
sue,  although  the  remedy  be  only  in  equity,  is  a  sufficient  considera- 
tion(/). 

But,  in  case  there  be  no  assets,  a  promise  by  an  executor  to  pay  a 
debt  of  the  testator  is  nudum  pactum[g).[A)  And  on  a  plea  of 
plenl  administravit,  proof  of  an  admission  by  the  executor  that  the 
debt  was  just,  and  should  he  paid  as  soon  as  he  could,  is  not  evi- 
dence to  charge  him  with  assets(A). 

Nor  shall  an  executor's  paying  interest  on  a  bond  due  from  the 
testator  be  considered  as  an  admission  of  assets  for  the  principal(e). 
[465]  Nor  shall  an  executor's  merely  submitting  to  an  award  amount 

{h)  Vid.  Stat.  29  Car.  2.  c.  3,  s.  4.  Bing.  460. 
Hawkes  v.  Saunders,  Cowp.  289,  and         (J)  3  Bac.  Abr.  90.  1  Sid.  89.  Scott 

Rann  v  Hughes,  7  Bro.  P.  C.  551.  v.  Stephenson,    1   Lev.  71.     1    Roll. 

(c)  Trevinian  v.  Howell,  Cro.  Eliz.  Rep.  27. 

91.     Reech  V.  Kennegal,  1  Ves.  125.         {g)  Pearson    v.    Henry,   5    Term 

Hawkes    v.    Saunders,    Cowp.    293.  Rep.  8. 

Rann  V.  Hughes,  7  Bro.  P.  C.  551.  {h)  Hinds! ey  v.  Russel,  12  East, 

(d)  Camden  v.  Turner,  cited  Cowp.  232. 

293.  {i)  Piersonv.Henry,5T.Rep.8. 

(e)  Childs  v.  Monins,   2  Brod.  & 


(1)  See  Forbes  \.  Perrie,  Mm.  1  Harr.  &  Johns.  109.  A  declaration  setting  forth  an 
implied  promise  by  an  administratrix,  as  such,  to  pay  money  paid,  laid  out,  and  expended 
by  the  plaintiff  for  her  use  as  administratrix,  in  consequence  of  the  payment,  after  the 
death  of  the  intestate,  of  a  debt  for  which  he  and  the  plaintiff"  were  jointly  liable  in  his 
lifetime,  is  good;  and  a  judgment  de  boius  intestati  founded  upon  it  may  be  supported. 
Collins,  Mm.  v.  Weiser,  12  Serg.  k  Rawlc,  97.  Giles  v.  Bacon's  Adm.  1  Harr.  &  Gill. 
164.     Whitakerv.  n'/wVaAer,  6  Johns.  Rep.  112. 

(2)  The  act  of  Assembly  of  JMarch  21st,  1772,  "for  prevention  of  frauds  and  perju- 
ries" (Purd.  Dig.  516;  1  Dall.  Laws,  640;  1  Sm.  Laws,  389),xontains  no  provisions  re- 
quiring that  the  promise  should  be  in  writing. 

(3)  Shields  et  al.  Ex.  v.  Owens,  1  Rawle,  72.  Curtis  v.  The  Bank  of  Somerset,  7 
Harr.  h.  Johns.  25.     Geyer  v.  Smith,  1  Dall.  Rep.  347.  n. 

(4)  Lunilis  V.  Urie,  10  Serg.  k  Rawlc,  310. 


CHAP.  X.]  EXECUTORS  AT  LAW.  465 

to  an  admission  of  assets(A').(l)  But  if  the  executor  bind  himself  by 
a  personal  engagement  to  perform  the  award;  or  if  his  submission  to 
arbitration  be  a  reference,  not  only  to  the  cause  of  action,  but  also  of 
the  question,  whether  he  has  or  has  not  assets,  and  the  arbitrator 
award  the  executor  to  pay  the  amount  of  the  plaintiff's  demand,  it  is 
equivalent  to  determine,  as  between  the  parties,  that  the  executor  had 
assets  to  pay  the  debt.  The  defendant  therefore  is  concluded  by  the 
award,  although  it  will  not  operate  as  an  admission  of  assets  in  any 
other  litigation,  and  he  may  be  attached  for  non-payment(/).(2) 

According  to  a  modern  decision,  an  action  may  be  maintained  in 
a  court  of  common  law  against  an  executor,  in  that  character,  on  his 
express  promise  to  pay  a  legacy  in  consideration  of  assets(m).(3) 
And  in  another  case  it  was  also  ruled  that  on  the  same  promise, 
grounded  on  the  same  consideration,  action  will  lie  against  an  execu- 
tor personally  in  his  own  right(;i). 

But  this  doctrine  has  been  exploded  by  subsequent  adjudications. 
It  is  true,  that  in  the  case  on  which  one  of  them  was  founded,  the 
[466]  executor  had  not,  as  in  two  former  instances,  expressli/  prom- 
ised to  pay  the  legacy:  yet  two  of  the  three  learned  judgeswho  decided 
it,  reasoned  on  general  principles,  and  denied  the  jurisdiction  of  the 
courts  of  common  law  over  the  subject  of  legacy,  without  reference 
to   any   distinction  between   an  express  and  an  implied   promise. 

(k)  Pearson  v.  Henry,  5  Term  Rep.  453. 

6.      .  (m)  Atkins  v.'  Hill,  Cowp.  284. 

(/)  Barry  V.Rush,  1  Term  Rep.  69-1.  (?i)    Hawkes   v.   Saunders,  Cowp. 

Pearson  v.  Henry,  5  Term  Rep.  7.  289. 
Worthington  v.  Barlow,  7  Term  Rep. 

(1)  Hbure  v.  J\fuloy,  2  Yeates,  161.  S-adcardv.  Wilson,  2  Rep.  Const.  Ct.  So.  Caro- 
lina, 208.  There  was  no  decision  called  for  in  the  7usi  prius  case  of  JM'Kee  v.  Thomp- 
son, Addis.  Rep.  24,  where  a  contrary  doctrine  was  advanced  by  the  court,  to  whom,  as  it 
is  stated  in  the  note,  the  case  of  I'earson  v.  Henry  was  not  known  when  the  cause  was 
argued  on  the  motion  in  arrest  of  judgment. 

(2)  A  confession  of  judgment  generally  by  an  executor  or  administrator  in  aft  action 
brought  against  him,  is  an  admission  of  assets  to  the  amount  of  the  debt  {Griffiths. 
Chew,  8  Serg.  &  Rawle,  17.  Deny.  De  Ilart,  1  Halst.  Rep.  450),  but  confession  of  judg- 
ment de  boTus,hy  agreement,  in  an  amicable  action,  is  not  conclusive  proof  in  Pennsylva- 
nia of  the  existence  of  assets  in  a  suit  suggesting  a  devastavit,  but  tlie  existence  of  assets 
must  be  proved  by  evidence  aliunde.  Hussey  v.  White,  10  Serg.  k  Rawle,  346.  And 
where  au  administrator  confesses  a  judgment  which  is  afterwards  reversed,  he  is  not  pre- 
cluded, in  a  subsequent  suit,  from  showing  Uie  want  of  assets.  Greene  v.  Stone,  1  Harr. 
k  Johns.  405.  Nor  in  Pennsylvania  does  an  administrator  who  suft'ers  a  judgment  to  be 
rendered  against  him,  in  an  action  wherein  the  declaration  does  not  charge  him  with  hav- 
ing received  estate  sufficient  to  pay  the  debt  sued  for,  thereby  make  such  an  admisgioa  of 
assets  as  will  charge  him  personally.    Sinclair  y.  Wilson,  3  Penns.  Rep.  167. 

(3)  Clark  v.  Herring,  5  Binn.  33.  See  JWJViell  v.  Quince,  2  Hayw.  Rep.  153.  But  no 
contract,  indeijcndeiit  of  express  promise  in  consideration  of  assets,  arises  between  the 
executor  and  legatee  to  pay  a  legacy,  nor  does  any  actioii  at  common  law  lie  to  recover  it; 
the  remedy  of  the  legatee  is  given  him  })y  the  act  of  Assembly  of  21st  March,  1772, 
(Purd.  Dig.  517).     IVilson  v.  Lon(r,  \o  Serg.  k  Rawle,  58. 

40 


466  OF  REMEDIES  AGAINST  [bOOK  III. 

They  held,  that  policy  and  convenience  forbade  the  courts  of  common 
law  to  entertain  this  species  of  action,  since  they  can  impose  no  terms 
on  the  party  suing:  Whereas  courts  of  equity  in  such  suits  interfere 
in  a  manner  highly  beneficial  to  private  families;  as  on  a  bequest  of  a 
legacy  to  the  wife,  they  require  the  husband  to  make  an  adequate 
settlement  on  her,  as  the  condition  of  his  recovering  it(?i):  But  if  he 
might  resort  to  an  action,  the  wife  and  children  would,  in  a  variety  of 
instances,  be  left  destitute  of  all  provision.  They  also  observed,  that 
the  only  other  precedent  of  such  an  action  occurred  in  the  time  of  the 
usurpation;  and  the  reason  there  assigned  for  allowing  it,  was  to  pre- 
vent a  failure  of  justice,  as  the  ecclesiastical  courts  were  at  that  time 
abolished,  and  the  Court  of  Chancery  did  not  then  take  cognizance  of 
legatory  matters,  and  these  principles  have  been  adhered  to  in  de- 
cisions still  more  recent(o).(l) 

Although  an  executor  be  entitled,  as  we  have  secn(7;),  to  sue  in  a 
[467]  court  of  conscience,  he  is  not  liable  to  he  sued  there.  The 
legislature  could  not  intend  to  give  to  such  a  court  an  authority  to 
inquire  into  the  conduct  of  executors,  and  to  take  an  account  of  as- 
sets(q). 

Executors  and  administrators  shall  not  in  general  be  held  to  bail, 
for  they  are  not  personally  liable,  but  only  in  respect  of  the  assets. 
It  were  unreasonable  to  subject  them  to  an  arrest  in  their  representa- 
tive capacity(r).(2)  But  they  may  be  held  to  bail,  if  it  appear  that 
they  have  wasted  the  property (.y).  (3)  Yet  a  bare  suggestion  of  a 
devastavit  is  not  sufficient  for  that  purpose  without  the  oath  of  the 
plaintiff(^).  So  where  on  a  judgment  against  an  executor  execution 
is  sued  out,  and  the  sheriff  returns  a  devastavit,  in  an  action  of  debt  on 
the  judgment  the  executor  maybe  required  to  putin  special  bail.(^i).(4) 

(n)  Vid.    Browne  v.    Elton,    3  P.  (r)  3  Bac.  Abr.  101.     Cro.Jac.350. 

Wms.  202,  and  supr.  320,  321.  Hargrave   v.    Rogers,  Yelv.  53.     Sir 

(o)  Decks  V.  Strutt,  5  Term  Rep.  Henry  Mildmay's  case,  Cro.  Car.  59. 

690.      Vid.  also  Parish  v.   Wilson,  Litt.  Rep,  2.     1  Crompt.  Prac.  29. 

Peake's  Ni.  Pri.Rep.  73.     See  4  Bac.  (s)  1  Crompt.  Prac.  29.     Anon.  1 

Abr.  4^6,  in  note.    Rawlinsonv.Shaw,  Lev.  39.     Dupratt  v.  Testard,  Carth. 

3   Term    Rep.    557,    and   Mayor    of  264.     Anon.  1  Mod.  16. 

Southampton  v.  Graves,  8  Term  Rep.  (<)  3  Bac.   Abr.  101.     1   Crompt. 

593.       .  Prac.  101. 

(p)  Supr.  436.  (m)  3  Bac.  101.     Dubray  v.  Comb. 

Ifj)  Stat.  14  G.  2.  c.  10.  Doug.  263.  206.  Boothsby  v.  Butler,  1  Sid.  63. 
Tidd's  Prac.  B.  R.  873. 


(1)  Pelletreau  v.  Rathbo7ie,  18  Johns.  Rep.  429.  See  also  the  cases  in  notes  [a)  [b)  to 
that  case. 

(2)  An  executor  in  Pennsylvania  may  be  proceeded  against  by  capias,  to  compel  an  ap- 
pearance.   Penrose  \.  Penrose,  Ex.  2  Binn.  440,  cited. 

(3)  Hartness  v.  Purcell,  1  Wend.  Rep.  303. 

(4)  A  refusal  to  apply  tlie  assets  to  the  payment  of  debts-does  not  amount  to  a  devastavit; 
nor  does  a  declaration  by  the  executor,  of  intention  to  leave  the  counti'y  and  not  return, 
justify  an  order  to  hold  bail.     Hartness  v.  Purcell,  1  Wend.  Rep.  303. 


CHAP.  X.]  EXECUTORS  AT  LAW.  467 

Where  an  executor  has  personally  promised  to  pay  a  debt,  it  seems 
he  may  be  holden  to  bail  on  such  promise(i4'). 

An  executor  defendant  shall  pay  costs  in  case  he  plead  a  plea 
which  is  false  within  his  own  knowledge.  And  the  judgment  for 
the  costs  is  dc  bonis  testatoris,  et  si  non,  de  bonis  propriis{x).{\) 
[468]  So  where  a  bankrupt  who  was  sued  as  executor,  pleaded  a 
false  plea,  and  its  being  found  against  him,  the  plaintiff  had  judg- 
ment for  the  costs  de  bonis  propriis,  after  which  the  defendant  ob- 
tained his  certificate,  it  was  held  that  the  judgment  for  the  costs  was 
not  discharged  by  the  certificate(3/).  But  where  an  executor  pleads 
plena  admiiiistravit,  and  the  plaintiff  admitting  the  truth  of  the 
plea,  takes  judgment  of  assets  in  futuro,  the  defendant  is  not  liable 
to  costs(r).(2)  Nor,  as  it  seems,  is  he  so  liable,  where  he  pleads 
plene  administravit  prseter,  and  the  plaintiff  admitting  the  truth  of 
the  plea,  takes  judgment  of  the  assets  admitted  in  part,  and  for  the 
residue  of  assets  in  futuro[a).[o)  So  where  an  executor  pleads 
several  pleas  to  the  whole  declaration  as  non,  assumpsit,  ne  unques 
executor,  and  plene  administravit,  and  one  of  them  is  found  for 
him,  he  is  entitled  to  the  postea  and  costs,  although  the  other  plea  be 
found  against  him(Z>).(4)  But  if  the  plaintiff  take  judgment  of  assets 
infuturo  on  the  plea  oi plene  administravit,  and  go  to  trial  on  the 
plea  of  7ion  assumpsit,  he  will  be  entitled  to  costs,  if  he  obtain  a 
verdict;  and,  therefore,  in  such  case,  unless  the  defendant  have  a  good 
ground  of  defence  on  non  asswmpsit,  it  is  usual  for  him  to  move  to 
withdraw  his  plea,  which  the  court  will  permit  him  to  do  on  pay- 
ment of  costs(c).  An  executor  defendant  shall  have  costs  in  case  of 
a  judgment  in  his  favour(fl?). 

[469]  If  the  defendant  die  after  final  judgment,  and  before  ex- 
ecution, the  plaintiff  shall  sue  out  the  same  by  sci7'e  facias  against 
the  personal  representatives(g).  But  a  fieri  facias,  if  tested  before 
the  defendant's  death,  although  not  delivered  to  the  sheriflf  till  after 

{w)    Mackenzie  v.    Mackenzie,    1  Noel  v.  Nelson,  2  Sauntl.  22G.  S.  C. 

Term  Rep.  716.  Sid.  448. 

{x)  SBac.Abr.  100.     Tidd's  Prac.  {b)  Edwards  v.   Bethee,    1    Barn, 

B.  R.  896.     Plowd.  183.     Hardr.  165.  and  Aid.  254. 

Cro.  Eliz.  503.  Hutt.  61).  79.     Farrv.  (c)  Tidd's   Prac.  B.  R.  896,  897. 

Newman,  4  Term  Rep.  641.     Bollard  Dearne  v.  Grimp,   2  Bl.   Rep.   1275. 

V.  Spencer  7  Term  Rep.  359.  Hindsley  v.  Russel,  12  East,  232. 

(?/)  Tidd's  Prac.  B.R.  81,  82.  896.  {d)  3  Bac.  Abr.  100. 

Howard  v.  Jemmet,  3  Burr.  1368.  S.  (e)    Com.    Dig.    Execution,    (F.) 

C.  1  Bl.  Rep.  400.  Pleader,  3  L.  7.     Dy.  76  b.     Tidd's 
(z)  Tidd's  Prac.  B.  R.  896.     Imp.  Prac.  B.  R.  1056.     Heapy  v.  Parrts,  6 

Prac.  B.  R.  428.  Term  Rep.  268.     Bragner  v.   Laiig- 

(a)  See  Rast.  Ent. 323.    8  Co.  134.     mead,  7  Term  Rep.  24. 

(1)  Sifflarv.  Haywood,  8  Wheat  Rep.  675.    As  to  wliat  pleas  are  false  pleas,  see  nn/e, 
40.3,  note  (4). 

(2)  Pope,  Adm.  v.  Ddavan,  etui.    1  Weird.  Rep.  C8.    JVMorn  v.  Gnvdon,  1  Mui-pli.  103 

(3)  Ford\.  Crane,  0  Cow.  Rep.  71. 

(4)  Oustcrhout  v.  Ilardenbevgh,  19  .Johns.  Rep.  200. 


469  OF  REMEDIES  AGAINST  [bOOK  III. 

it,  may,  without  a  scire  facias,  be  executed  on  his  goods  in  the  hands 
of  his  executor  or  administrator(y).  (1)  And,  as  we  have  scen(,i,'-),  a 
ju(lp;mcnt  signed  at  any  time  during  the  term,  or  the  vacation  next 
following,  relates  hack  to  the  first  day  of  the  term,  although  the  de- 
fendant died  before  the  judgment  was  actually  signed;  and  an  execu- 
tion tested  the  first  day  of  the  term  may  be  taken  out  upon  it  against 
the  goods(A).(2) 

A  judgment  recovered  against  an  executor  or  administrator  is,  as 
we  have  seen(/),  usually  for  the  debt  or  damages  and  costs,  to  be 
levied  of  the  goods  and  chattels  of  the  testator  or  intestate  in  the 
hands  of  the  defendant,  if  he  hath  so  much  thereof  in  his  hands  to  be 
administered;  and  if  he  hath  not,  then  the  costs  to  be  levied  of  his 
own  proper  goods(A;).  In  such  case  the  course  is  for  the  plaintiff  to 
sue  out  a  fiei^i  facias  de  bonis  testatoris,  <5'C.  et  si  non,  de  bonis 
propriis,  according  to  the  judgment(/),  upon  which  the  sheriff" 
[470]  returns  either  mi/la  boiia  generally,  or  nulla  bona,  and  a 
devastavit  by  the  defendant(m).  On  the  former  return,  the  plain- 
tiff" must  proceed  by  scire  fieri  inquiry(n),  or  by  action  of  debt  on 
the  judgment  suggesting  a  devastavit.  On  the  latter  he  may  have 
execution  immediately  against  the  defendant  by  capias  ad  satisfa- 
ciendum, or  fieri  facias  de  bonis  propriis{o).{3)  So,  on  a  devas- 
tavit returned,  a  writ  of  elegit  will  lie  against  an  executor  or  admin- 
istrator(/;). 

Of  execution  against  an  executor  or  administrator  in  case  of  the 
defendant's  death  before  final  judgment,  I  have  already  treated(5'). 

If  the  plaintiflf  confess  the  plea  of  plenr.  administravit,  or  plenl 
administravit  pneter,  there  shall  be  judgment  in  his  favour  for 
the  debt  or  damages,  and  costs  to  be  levied  as  to  the  whole  or  in 
part,  of  the  goods  of  the  testator  or  intestate  which  shall  afterwards 
come  to  the  hands  of  the  defendant  to  be  administered.  And  such 
judgment  is  styled  a  judgment  of  assets  cjuando  acciderint:  but 
in  that  case  execution  cannot  be  had  until  the  defendant  shall  have 
goods  of  the  deceased,  when  the  plaintiff"  may  either  sue  out  a  scire 

(/)  Com.  Dig.  Execution,  D.  2.  F.  (Z)  Gibson   v.    Brook,    Cro.   Eliz. 

Semb.  Anon.  2  Ventr.  218.    R.  Skin.  886. 

257.  (m)  Thes.  Brev.  116,  117. 

(g)  Supr.  266.  («)  Lit.  Ent.  664. 

(h)  Bragner  v.  Langmead,  7  Term  (o)  Tidd's  Prac.  B.  R.  942.     Thes. 

Rep.  20.  Brev.  46,  47.  122.  125. 

(0  Supr.463.  (p)  Tidd's   Prac.    B.  R.  957.      1 

lie)  Tidd's  Prac.  B.  R.  941.     Farr  Crompt.  Prac.  346.     2  Leon.  188. 

V.  Newman,  4  Term  Rep.  648.     Bol-  (y)  Supr.  443,  444. 
lard  V.  Spencer,  7  Term  Rep.  359. 


(1)  Leiper  v.  Levis,  Advi.  15  Serg.  &  Rawle,  108. 

(2)  Leiper  v.  Levis,  Adm.  15  Serg.  &  Rawle,  108;  but  a  judgment  creditor  obtains  no 
priority  over  other  judgment  creditors  by  le>7ing  under  an  execution  so  taken  out. 

(.3)  Sivearivgeii's  Ex.  v.  Pciidleton^s  7ir,    4  Serg.  k  U:iwle,  3S9. 


CHAP.  X.]  EXECUTORS  AT  LAW.  470 

facia!^,  or  bring  an  action  of  debt  on  the  judgment  suggesting  a  de- 
vastavit{r).[\) 

[471]  Before  the  stat.  38  Geo.  3.  c.  87,  an  infant  executor,  after 
he  had  attained  the  age  of  seventeen,  might  have  been  sued ;  in  which 
case  he  was  to  appear  by  guardian,  and  not  by  attorney,  when  the 
same  judgment  might  have  been  recovered  against  him  as  against 
any  other  executor(5);  but  in  consequence  of  that  act,  till  he  comes 
of  age  he  is  neither  capable  of  suing,  nor  liable  to  be  sued. 

A  limited  executor  is  also  subject  to  be  sued  during  the  continu- 
ance of  his  office(/). 

In  an  action  against  a  married  woman  executrix,  the  husband  must 
be  joined(w).  On  a  judgment  against  husband  and  wife  executrix, 
if  she  survive,  an  action  of  debt  does  not  lie  suggesting  a  devastavit 
by  the  husband;  for,  although,  in  case  she  married  after  the  testa- 
tor's death,  she  is  answerable  for  the  wasting  by  the  husband(i^), 
yet  she  shall  not  be  charged  de  bonis  propriis  for  the  costs  recov- 
ered against  him(a^). 

If  there  be  several  executors,  they  must  all  be  sued(y),  in  case 
they  have  all  administered.  But  such  as  have  not  administered  may 
be  omitted(2'):  for  although  executors  themselves  must  be  conscious 
how  many  are  named  by  the  will,  and  must,  as  we  have  seen^  frame 
[472]  their  action  accordingly,  yet  creditors  and  strangers  are  bound 
to  take  notice  of  such  executors  only  as  in  fact  execute  the  ofiice.  If 
one  only  confess  a  judgment,  it  seems  now  settled  that  it  shall  not 
bind  nor  conclude  the  rest(«).  If  they  plead  distinct  pleas,  it  is 
said  that  shall  be  received  which  is  best  for  the  estate,  or  most  deci- 
sive of  the  question(6).  Of  co-executors,  if  some  are  of  full  age,  and 
others  infants,  the  action  may  be  against  them  all;  but  the  latter  can- 
not appear  with  others  by  attorney,  but  must  appear  by  guardian(c). 

(r)  Tidd's  Prac.  B.  R.  1033,  1039.         (w)  Vid.  supr.  358,  359. 
1041.   8  Co.  134;  and  vid.  Dorchester  {x)  Com.  Dig.  Admon.  I.  3.    Horsy 
V.  Webb,  Cro.  Car.  372.     Sed.  vid.  v.  Daniel,  2  Lev.  161. 
Noel  v.  Nelson,  2  Saund.  226.    1  Sid.         {y)  3  Bac.  Abr.  32.     Off.  Ex.  95. 
448.     Noel  v.  Nelson,    1   Lev.  286.         (z)  3  Bac.  Ab.33.     Swallow  v.  Em- 
Noel  V.  Nelson,  1  Ventr.  94,  95.     2  berson,  1  Lev.  161.     S.  C.  1  Sid.  242. 
Keb.  606.  621.  631.  666.  671.     Hob.         (a)  Off.  Ex.  68.    Vid.  sup.  359,  360. 
199.     Gill  V.  Scrivens,  7  T.  Rep.  29.         {h)  Off.  Ex.  98.     3  Bac.  Abr.  33. 

(s)  3  Bac.  Abr.  9.  618.    1  Roll.  Abr.  Godolph.  136.     Hudson  v.  Hudson,  1 

287,288.     Poph.  130.     Cro. . lac.  420.  Atk.  4G0;  and  vid.  supr.  359,  360. 
Westcott  v.  Cotde,  1  Roll.  Rep.  380.  (c)  3  Bac.  Abr.  13.  619.     Smith  v. 

(0  Vid.  Off.  Ex.215,  216.  Smith,  Yelv.  130.     Styl.  318.     Vid. 

(w)  Cora.  Dia.  Admon.  D.    Off.  Ex.  Fitzgerald   v.    Villiers,   3  Mod.  236. 

203.  207.     3  Bac.  Abr.  9.  Frescobaldi  v.  Kinaston,  2  Stra.  784. 


(I)  In  Pennsylvania,  if  the  executor  or  administrator  has  no  personal  assets,  lie  may 
plead  the  want  of  assets  ag;«inst  an  action  by  a  creditor;  and,  if  the  jury  find  in  his  favour, 
no  judgment  can  go  against  liim;  but  in  such  case  the  plaintift"may  praj' judgment  de  ter- 
ris,  he.  and  of  assets  quando  acciderint,  which  is  entered  of  course.  IVUhou  v.  Jlurst^s 
Ex.  1  Peters'  C. C.  Ilep.  441 .  The  Pemmylvurua  Jl^icuHurul,  &c.  JJank  v.  Slambaugli'x 
Adm.  13  Serg.  fee  Ilawle,  300,    Mitore  v.  Ken;  Ex.  10  Scrg.  'bi.  Kawle,  348. 


472  OP  REMEDIES  AGAINST  [nOOK  III. 

It  is  clearly  settled,  that  one  executor  shall  not  he  charged  with 
the  devastavit  of  his  companion,  and  shall  be  liable  only  to  the  ex- 
tent of  the  assets  which  came  to  his  hands((/),  if  he  has  not  in  any 
manner  contributed  to  the  loss.  The  testator's  having  misplaced 
his  confidence  in  one  executor  shall  not  operate  to  tlie  ])rejudice  of 
the  others(e).  Nor  shall  one  executor  be  affected  by  notice  to  the 
other,  who  conceals  it  from  him,  of  the  existence  of  a  superior  de- 
mand(/).  But  if  there  be  notice  to  one  executor,  and  nothing  more 
appears,  he  shall,  it  seems,  be  presumed  to  have  communicated  it  to 
the  other(^'-). 

[473]  An  executor  of  an  executor  shall,  as  I  have  already  men- 
tioned, pursuant  to  the  stat.  4  &  5  W.  k.  M.  c.  24,  s.  12,  be  charged 
on  a  devastavit  committed  by  his  testator,  in  the  same  manner  as 
such  testator  would  have  been,  if  living(/<).  But,  although,  as  we 
have  seen(/),  an  action  of  debt  may  be  maintained  by  A.  an  execu- 
tor, suggesting  a  devastavit  in  the  lifetime  of  his  testator,  on  a  judg- 
ment recovered  by  such  testator  against  B.  also  an  executor;  yet  in 
such  case  it  seems,  as  against  B.'s  executor,  a  scire  facias  is  requisite, 
inasmuch  as  he  was  not  privy  to  the  judgment(A^). 

It  is  not  enough  for  the  executor  of  an  executor  sued  for  breach  of 
covenant  made  by  the  original  testator,  to  plead  plenl  adniinistra- 
vit  of  all  the  goods  and  chattels  of  the  original  testator  at  the  time 
of  his  death  come  to  the  hands  of  the  defendant,  &c.  without  also 
pleading  plene  administravit  by  the  first  executor;  or  at  least  that 
he,  the  second  executor,  had  no  assets  of  the  first;  so  as  to  show  that 
he  had  no  fund  out  of  which  any  devastavit  by  the  first  executor 
could  be  made  good(/). 

An  executor  de  son  tort  is  liable  to  the  action  of  the  lawful  ex- 
ecutor or  administrator,  or  to  that  of  a  creditor;  and,  in  the  latter 
case,  may  be  charged  as  executor  generally(77i).(l)     If  there  be  also 

{d)  2  Bac.  Abr.  31.     Off.  Ex.  161,  Bac.  Abr.  99.     Off.  Ex.   259.     Hol- 

162.    Godolph.  134.   Hawkins  v.  Day,  comb  v.  Petit,  3  Mod.  113.      Beynon 

Ambl.  162.     Shep.  Touchs.  496.    Lit-  v.  Gollins,  2  Bro.  Ch.  Rep.  324.    Vid. 

tlehales  v.  Gascoyne,  3  Bro.  Ch.  Rep.  supr.  430. 

74.     Supr.  430.  (/)  Supr.  431,  432. 

(f)    Hargthorpe  v.    Milforth,    Cro.  (A:)  Berwick  v.  Andrews,  Salk,  314. 

Eliz.  318.  S.  C.  Ld.  Raym.  971. 

(/)  Littlehales  v.  Gascoyne,  Ambl.  (/)  Wells  v.  Fydell,  10  East,  815. 

162.  (m)    Com.    Dig.    Admon.    C.    1. 

(iO  Ibid.  Whitehall  v.  Squire,  Carth.  104.     Off. 

(A)  Vid.  Com.  Dig.  Admon.  I.  3.    3  Ex.  177.     5  Co.  31. 


(1)  Stockton  V.  Wilson,  3  Penns,  Rep.  129.  Ho-weWs  Adm.  v.  Smth,  2  M'Cord's  Rep. 
517.  On  the  death  of  a  defendant  in  an  action  of  debt,  a  summons  may  issue  to  an  execu- 
tor de  son  tort  (there  being  no  legal  executor  or  administrator  of  the  deceased)  to  appear 
and  defend  the  action.  Where  an  executor  de  son  tort,  being  summoned,  appeared  to  an 
action  of  debt  brought  against  the  deceased,  and  confessed  the  action,  and  admitted  tlie 
debt  was  due  to  tlie  plaintift'.  An  auditor  was  then  appointed  to  ascertain  the  sum  for 
which  judgment  should  be  rendered,  regard  being  had  to  the  assets,  &c.  according  to  the 


CHAP.  X.]  EXECUTORS  AT  LAW.  473 

a  lawful  executor,  they  may  be  joined  in  an  action  by  a  creditor  or 
sued  severally(w);(l)  but  it  is  otherwise  if  there  be  a  lawful  admin- 
istrator; he  cannot  be  so  joined  with  an  executor  de  son  tort{o). 
If  a  creditor  take  out  administration,  he  may  recover  his  debt  against 
him  who  before  the  grant  was  executor/«^e  son  tort,  as  well  as  the 
goods  of  the  intestate  taken  or  converted  previously  to  the  same(jo).(2) 
And  if  a  person  act  under  a  power  of  attorney  from  one  of  several 
executors,  who  has  proved  the  will,  although  he  cannot  be  charged 
as  executor  de  son  tort  during  the  life  of  such  executor,  yet  if  he 
continue  to  act  after  the  death  of  such  executor,  he  may  be  charged 
as  executor  de  son  tort,  though  he  act  under  the  advice  of  another 
of  the  executors  who  has  not  proved  the  will(§'). 

[474]  A  party,  as  we  have  seen(r)  may  be  an  executor  de  son  tort 
of  a  term,  and  is  chargeable  for  waste  committed  by  him  on  the  de- 
mised premises(^).  If  an  executor  de  son  tort  be  guilty  of  that,  or 
any  other  species  of  devastavit,  or  plead  ne  unques  executor,  and 
it  be  found  against  him,  he  shall  be  charged  as  another  executor  de 
honis  j)Topriis{t) :  but  in  general  cases  he  is  liable  only  to  the  amount 
of  the  assets  which  come  to  his  hands(w). 

By  the  stat.  30  Car.  2.  c.  7,(3)  made  perpetual  by  the  stat.  4  &  5 
W.  &  M.  c.  24,  above  referred  to,  the  executor  of  an  executor  in  his 
own  wrong  is  chargeable  on  a  devastavit  by  his  testator,  in  the  same 
manner  as  such  testator  would  have  been  if  \\v'mg{w). 

But  it  seems  that  an  executor  de  son  tort  of  an  executor  de  son 
tort  is  not  liable  for  a  devastavit  committed  by  such  first  executor, 
either  at  common  law,  or  by  either  of  the  two  last  mentioned  sta- 
tutes(ir). 

What  has  been  stated  in  regard  to  actions  against  executors,  is,  in 
the  main,  applicable  to  administrators,  whether  general  or  limited. 
If  an  administrator  durante  7ninoritate  continue  in  the  possession 
[475]  of  the  effects  after  the  executor  is  come  of  age,  he  may  be  sued 
either  by  the  executor  or  by  a  creditor(y).     But  if  such  administra- 

(ti)    Off.  Ex.  178.  Lev.  35.     Off.  Ex.  Suppl.  102. 

(o)  Ibid.  (0  Off.  Ex.  157. 

(p)  Com.  Dig.  Admon.  C.  3.     Sti.  (w)  Dyer,  166  b.  note  11. 

384.  \w)  Vid.  Com.  Dig.  Admon.  I.  3. 

(r/)  Cottle  V.  Aldrich,  4  Mau.  &  Sel.  \x)  Com.  Dig.  Admon.  I.  3.     Andr. 

175.  252.     3  Bac.  Abr.  100,  in  note. 

(r)  Supr.  38.  {y)  Com.  Dig.  Admon.  F.     1  Sid. 

(s)  Mayor  of  Norwich  v.  Jolinson,3  57.     1  Anders.  34. 


act  of  1798,  c/t.  101,  sub-ch.  8,  s.  9.  The  appointment  of  llic  audilor  was  altei-wards 
stricken  out  by  the  court,  and  a  judgment  rendered  on  the  confession  of  the  executor  de 
son  tort,  for  the  debt  and  costs,  (k  bonis  tcstatoris,  si  non  de  bo?us  propriis,  us  to  cosls. 
Error  being  brought,  the  judgment  was  reversed.  JVorfolk^s  Ex.  v.  Gantl,  2  Harr.  & 
Johns.  435. 

(1)  Stockton  V.  Wilson, ."?  Penns.  Rep.  129. 

(2)  Osboi-nc  V.  Moss,  7  Johns.  Rep.  ICO. 

(3)  In  force  in  Pennsylvania.    3  Biun.  f)24.  Jiobcrtj^  Dig.  2a8. 


475  OF  REMliMIES  AGAINST  [bOOK  111. 

tor  administer  in  part,  and  deliver  to  the  executor,  on  his  coming  of 
age,  all  the  residue,  he  cannot  be  charged  by  a  stranger(z).  If  be- 
fore the  executor  attain  the  age  of  twenty-one,  the  administrator 
wasted  the  assets,  he  may  be  charged  on  the  special  matter  by  the 
executor(«);  but  subsequent  to  that  period,  he  is  not  liable  for  the 
devastavit  at  the  suit  of  a  creditor.  The  creditor  must  resort  against 
the  executoi-,  who  is  entitled  to  his  remedy  against  the  administra- 
tor(6). 

The  executor  of  a  deceased  partner  and  the  survivor  cannot  be 
jointly  sued  for  a  debt  due  from  the  partnership,  because  the  former 
is  to  be  charged  de  bonis  testutoris,  the  latter  de  bonis propriis{c); 
but  the  creditor  may  proceed  against  either,  who  may  claim  from 
the  other  contribution.  (1) 

But  if  the  executors  of  a  deceased  partner  continue  his  share  of 
the  partnership  property  in  trade  for  the  benefit  of  his  infant  daugh- 
ter, they  are  liable  upon  a  bill  drawn  for  the  accommodation  of  the 
partnership,  and  paid  in  discharge  of  a  partnership  debt,  although 
their  names  are  not  added  to  the  iirm,  but  the  trade  is  carried  on  by 
the  other  partners  under  the  same  firm  as  before,  and  the  executors, 
when  they  divide  the  profit  and  loss  of  the  trade,  carry  the  same  to 
the  account  of  the  infant,  and  take  no  part  of  the  profits  themselves(c^). 

By  the  stat  8  */in7i.  c.  14(e),  a  lessor  is  empowered  to  distrain 
within  six  calendar  months  after  a  lease  for  life,  or  for  years,  or  at 
will,  is  determined,  provided  his  own  title  or  interest,  as  well  as  the 
tenant's  possession,  continue  at  the  time  of  the  distress.  In  case  a 
[47G]  lessee  die  before  the  expiration  of  a  term,  and  his  executor 
continue  in  possession  during  the  remainder  and  after  the  expiration 
of  it,  a  distress  may  be  taken  for  rent  due  for  the  whole  term(/). 

(2)  Brooking  v.  Jennings,  1  Mod.  {d)    Wiglitman    v.   Townroe    and 

174,  175.  others,  1  Mau.  &  Sel.  412. 

(a)  Latch.  160.  (e)  Vid.  Com.  Dig.  Distress,  A.  2. 

(i)  3  Bac.  Abr.  14.     Latch.  2G7.  3  Bl.  Com.  11. 

1  Anders.  34.     6  Co.  18  b.  (/)  Braithwaite  v.  Cooksey  et  al. 

(c)  Hall  V.  Huffam,  2  Lev.  228.  1  H.  Bl.  Rep.  465. 


(1)  WTiere  one  of  two  or  more  joint  contractors  dies,  subsequently  to  making  the  con- 
tract, the  survivors  alone  continue  responsible  at  law,  the  personal  representatives  of  the 
deceased  partner  being  discharged  from  liability.  G'ow  on  Partnership,  208,  Am.  edit. 
1  Caines'  Ca.  123.    Kirby's  Rep.  86,  87. 

If  the  executor  or  administrator  therefore  be  sued,  he  may  either  plead  the  survivorship 
in  bar,  or  give  it  in  evidence  under  the  general  issue.  Go'm,  ibid.  Burgwin  v.  Hostler^s 
Adm.  Tayl.  Rep.  124.     S.  C.  Hayw.  Rep.  104. 

In  Pennsylvania,  however,  in  order  to  reach  the  estate  of  a  deceased  partner,  an  action  of 
as^impsit  will  be  sustained  against  his  executor,  if  the  surviving  partner  be  a  certificated 
bankrupt  before  action  brought;  for  tliere  being  no  Court  of  Chancery  in  the  state,  a  cre- 
ditor could  not  come  at  the  fund  wliich  in  equity  is  bound  for  his  debt,  unless  such  action 
were  sustained;  and  in  such  a  case  a  plea  in  abatement  would  be  ill,  for  tlie  defendant 
could  not,  by  such  plea,  give  the  plaintiff  another  person  liable  to  suit.  Lan^  v,  Keppele, 
Ex.  1  Binn.  123. 


CHAP.  X.]  EXECUTORS  AT  LAW.  476 

An  executor,  it  seems,  is  bound,  provided  he  have  assets,  to  main- 
tain an  apprentice  till  the  term  is  expired :  for  a  distinction  exists 
between  a  covenant  to  maintain,  and  a  covenant  to  instruct  an  ap- 
prentice: The  former  is  a  lien  on  the  executor,  although  not  named, 
in  respect  of  the  assets;  the  latter  is  a  judiciary  trust  annexed  to  the 
person  of  the  master(^).(l)  But  justices  of  the  peace  have,  gene- 
rally speaking,  no  authority  to  order  an  executor  to  maintain  art  ap- 
prentice, for  such  a  jurisdiction  would  prevent  his  insisting  by  a  plea 
of plenh  administravit  on  a  deficiency  of  assets  as  an  exemption(A). 

By  the  custom  of  London,  it  is  said,  the  executor  is  bound  to  put 
the  apprentice  to  another  master  of  the  same  trade(i). 

In  respect  to  a  parish  apprentice,  on  whose  binding  no  larger 
[477]  sum  than  five  pounds  shall  have  been  paid,  some  specific  regu- 
lations are,  in  the  event  of  the  master's  death,  prescribed  by  the  stat. 
32  Geo.  3.  c.  57,  which  enacts,  that  if  the  master  of  such  an  appren- 
tice shall  die  during  the  term,  the  covenant  in  the  indenture  for  his 
maintenance  shall  not  continue  in  force  longer  than  three  calendar 
months  after  the  death  of  such  master,  during  which  the  apprentice 
shall  continue  to  live  with  and  serve  the  executors  or  administrators, 
or  with  such  person  as  they  shall  appoint:  And  in  all  such  parish  in- 
dentures of  apprenticeship  there  shall  be  annexed  to  the  covenant  for 
maintenance  a  proviso,  that  such  covenant  shall  not  continue  longer 
than  three  calendar  months  after  the  death  of  the  master;  but  if  such 
proviso  be  omitted,  the  covenant  on  the  part  ot  the  master  to  main- 
tain the  apprentice  shall  continue  only  for  three  calendar  months  after 
his  death,  within  which  period  two  justices  of  the  peace  where  the 
master  died  shall,  on  the  application  of  the  widow  of  such  master,  or 
of  any  son,  daughter,  brother,  or  of  any  executor  or  administrator  of 
the  deceased,  by  indorsement  on  the  indenture,  direct  the  apprentice 
to  serve  another  master  for  the  remainder  of  his  term.  The  statute 
also  makes  the  same  provisions  for  the  death  of  any  subsequent 
master.  It  then  directs,  that  if  no  application  be  made  to  two  jus- 
tices within  the  three  months,  or  if  on  application  they  shall  not  think 
fit  to  continue  such  apprenticeship,  the  indentures  shall  be  void.  It 
further  provides,  that  the  act  shall  not  extend  to  any  parish  appren- 
tice not  living  with  or  serving  such  original  or  subsequent  master  at 
[478]  the  time  of  his  death.  And  lastly,  it  enacts,  that  if  the  origi- 
nal or  any  subsequent  master,  or  the  personal  representative  of  such 
master,  having  assets  during  the  three  months,  shall  refuse  or  neglect 
to  maintain  and  provide  for  such  apprentice  according  to  the  form  of 

{g)  Com.  Big.  Justices  of  Peace,  B.  12G6.     Vid.  supr.  152.  285. 

57.     4  Bac.  Abr.  579.     1  Burn.  Just.  (A)  Pett  v.  Inhabitants  of  Wingfield, 

82.     1  Const's  Bott's  P.  L.  524.    PI.  Carth,  231.     Rex  v.  Pctt,  Show.  405. 

745.     Cro.  Eliz.  553.     Wadsworlhv.  1  8alk.  G6. 

Gye,  1  Sid.  216.    Rex  v.   Peck,   1  (/)  Per  Holt,  C.J.  S.  C.  1  Salk.  66. 
Salk.   66.     Baxter  v.   Burfield,  Stra. 


(I)  See,  however,  Tlie  Common-wealthy.  Kinff,  4Serg.  fecltuwlc,  IO'JjuikJ  tlieieinarks 
of  (jh.  Justice  Tilglimun  ujton  tlic  cuscs  contained  in  note  (i^). 
41 


478  OF  REMEDIES  AGAINST  [bOOK  III. 

such  covenant,  two  justices,  on  complaint  of  the  apprentice,  or  the 
parish  officer,  may  levy  sufficient  for  the  purpose  by  distress  and  sale 
of  the  effects  or  assets  of  such  master. 

Executors  and  administrators  are  within  the  custom  of  foreign  at- 
tachment; and,  therefore,  if  a  plaint  be  entered  in  the  court  of  the 
mayor  or  sheriti"  of  London  against  an  executor  or  administrator,  the 
plaintiff  may  attach  money  or  goods  belonging  to  the  deceased  in  the 
hands  of  another  within  the  city  (^).  But  a  debt  due  to  the  deceased 
cannot  be  attached  on  a  plaint  against  his  personal  representative,  al- 
though he  be  sued  under  that  description,  unless  he  be  sued  for  a 
debt  due  from  the  deceased(/).(l)  Nor  shall  there  be  an  attachment 
for  the  debt  of  a  testator  of  money  or  goods  in  the  hands  of  the  ex- 
ecutor, unless  they  were  due  or  belonging  to  the  testator  at  the  time 
of  his  death,  although  they  be  assets;  as  if  an  executor  sell  the  goods 
of  the  testator,  the  money  cannot  be  attached  in  his  hands(m).  Nor, 
if  he  take  a  bond  for  a  debt  due  to  the  testator,  can  the  money  payable 
on  the  bond  be  attached(w).  Nor  if  an  executor  recover  damages  in 
trespass  for  [479]  the  testator's  goods,  or  on  a  covenant  made  with 
him,  can  there  be  an  attachment  of  the  damages(o).  Nor,  if  money 
be  awarded  to  an  executor  on  a  submission  by  him  of  controversies 
between  his  testator  and  another  person,  can  the  money  due  by  the 
award  be  attached(7;).  Nor  can  there  be  an  attachment  of  a  legacy; 
for  creditors  have  an  interest  in  it,  and  they  are  incapable  of  being 
warned(^). 


Sect.  IV. 
Of  remedies  against  executors  and  administrators  in  equity. 

An  executor  or  administrator  is  also,  in  his  representative  charac- 
ter, liable  to  all  equitable  demands,  with  regard  to  personal  property, 
that  existed  against  the  deceased  at  the  time  of  his  death. 

If,  pending  a  suit,  the  defendant  die,  it  shall  be  continued  by  bill 
of  revivor  against  his  executor(«). 

Legatees,  or  persons  in  distribution,  are  also  entitled  to  assert  in  a 
court  of  equity  their  claims  against  the  executor  or  administrator, 
[480]  on  the  principle,  that  equity  considers  an  executor  as  a  trustee 

(A-)  Com. Dig.  Attachment,  A.  B.  3         (n)  S.  C.  1  Ventr.  113. 
Bac.  Abr.  258.    1  Roll.  Abr.  105.  Vid.         (o)  Ibid.  112. 
Dy.  196  b.     Fisher  v.  Lane,  3  Wils.         (p)  Horsam    v.  Target,   1    Ventr. 

297.     S.  C.  2  Bl.  Rep.  834.  112,113.     S.  C.  1  Lev.  306. 

(A  Com.Dig.  Attachment,  D.  Hod-         (ry)  1   Ch.  Ca.  257.     1  Roll.  Abr. 

ges  V.  Cox,  Cro.  Eliz.  843.  551.     3  Bac.  Abr.  259.     Noy.  115. 

(m)  Horsam  v.  Turget,  1  Ventr.  113.         (a)  Mitf.  63,  64. 


(1)  la  Pennsylvania  a  foreign  attachment  will  not  lie  against  executors.    JSTCombe  v. 
Bunch,  Pringle  v.  Black's  Ex.     2  Ball.  Rep.  73.  97. 


CHAP.  X.]  EXECUTORS  AT  LAW.  480 

for  the  legatee  in  respect  to  his  legacy,  and  as  trustee  in  certain  cases 
for  the  next  of  kin  of  the  undisposed  surplus(6).  It  also  regards  the 
administrator  as  trustee  for  the  parties  in  distribution(c).  And  trusts 
are  the  peculiar  objects  of  equitable  cognizance.  Thus  a  bill  lies  for 
a  personal  legacy;  or  for  a  discovery,  and  an  account  of  assets;  or 
for  the  distribution  of  an  intestate's  personal  estate(^).  And  an  ad- 
ministrator cannot  avail  himself  of  the  length  of  time  as  an  answer  to 
the  plaintiff's  bill  for  an  account  and  application  in  payment  of  debts, 
where  he  has  not  pleaded  or  claimed  the  benefit  of  the  statute  of 
limitations(e).  So  it  lies  for  the  discovery  of  assets,  merely  for  the 
purpose  of  enabling  the  plaintiff  to  maintain  an  action  at  law  against 
an  executor(/");  but  not  till  he  has  denied  assets  by  his  plea  to  the 
action(^). 

An  executor  having  admitted  a  large  balance  of  personal  estate  to 
be  in  his  hands,  was  ordered  to  pay  the  whole  into  court,  although 
he  stated  that  an  action  at  law  was  depending  against  him  for  a  debt 
to  a  considerable  amount  from  the  testator;  but  with  liberty,  in  case 
the  plaintiff  in  the  action  should  recover,  to  apply  to  the  court  to 
have  a  sufficient  sum  paid  out  again.  The  plaintiff  in  the  action  did 
recover,  and  the  court  ordered  the  amount  to  be  paid  out  to  him,  and 
not  to  the  executor  (A). 

And  where  an  executor  admitted  a  balance  due  from  him  to  his 
testator  upon  an  unsettled  account,  notwithstanding  Ije  by  his  answer 
stated  there  were  debts  owing  from  the  estate  to  which  he  was 
liable  to  the  extent  of  assets,  including  that  balance,  the  testator  hav- 
ing died  three  years  before,  he  was  ordered  to  pay  the  balance  into 
court,  as  all  the  debts  ought  to  have  been  paid(/). 

So  where  executors  having  personal  estate  of  the  testator  given  to 
them  by  the  will,  upon  trust  to  lay  out  upon  good  and  sufficient  se- 
curity, for  an  infant,  to  be  paid  on  his  coming  of  age,  after  a  decree 
for  an  account  and  notice  by  the  next  friend  of  the  infant  plaintiff 
lending  a  part  of  such  personal  estate  upon  mortgage,  they  were  or- 
dered to  pay  the  same  into  court;  but  the  motion  asking  in  the  alter- 
native, that  the  executors  might  be  ordered  to  replace  the  amount  by 
so  much  stock  as  the  same  would  have  purchased  at  the  time  of  the 
investment,  was  to  that  extent  refused  (A^). 

And  an  executor,  by  the  schedule  to  his  answer,  acknowledging 
that  he  had  received  the  testator's  property,  and  lent  it  on  a  promis- 
sory note,  was  ordered  to  pay  the  money  into  court(/). 

An  executor  may  be  also  called  upon  in  equity  to  account  for 

(i)  4  Bac.  Abr.  447.     Anon.  1  Atk.  132. 
491.     Farrington  v.    Knightley,  1  P.         (/)  Com.  Dig.  Chancery,  2  G.  3. 
Wms.  544.     Wind  v.  Jekyl,  ib.  575.  (.i,--)  Il)id.  3  B.  2. 

Prac.  Reg.  2d  edit.  209.  (h)  Yare  v.  Harrison,  2  Cox's  Rep. 

(c)  2    Fonbl.   322.      Matthews    v.  377. 

Newby,  1  Vern.  133,  134.     2  Ch.  Ca.  (t)  Mortlock  v.  Leathes,   2  Meriv. 

95.  Anon.  2  Ventr,  3G2.  2  Ch.  R.  1G7.  491. 

(d)  1  P.Wins.  287.  2  Fonbl.  321.  (k)  Widdowson  v.  Duck,  2  Meriv. 
note  (d).  ibid.  322.     Conn.  Dig.  Clian.  494. 

3  D.  1.  (/)  Vigrass  v.    Binficld,    3   Madd. 

(e)  Cockshutt  v.  Pollard,  1  W  ils.      Rep.  G2. 


480  OF  REMEDIES  AGAINST  [bOOK  III. 

interest  he  has  made  of  Ihc  testator's  estatcfwz).     And  he  may  be 
charged  with  interest  upon  hahmces,  though  not  prayed  by  tlic  bill(72). 

And  although  the  rule  be  not  invariable,  that  an  executor  in  all 
cases  shall  pay  interest  for  money  employed  in  the  course  of  his 
trade;  yet  if,  without  any  reasonable  cause,  he  detain  it  for  any 
length  of  time  from  the  persons  entitled,  and  apply  it  to  the  pur- 
poses of  his  trade,  or  even  suJSer  it  to  lie  idle  in  his  hands,  he  shall 
[481]  be  subject  to  the  payment  of  intercst(o).(l) 

Ordinarily,  tlie  court  on  a  bill  filed  for  a  legacy  of  stock,  does  not 
inquire,  whether  the  stock  legacy  could  have  been  invested  at  an 
earlier  period;  but  where  the  executor  is  a  trustee  also,  and  retains 
the  legacy  without  investing  it,  he  is  liable  for  any  loss,  occasioned 
by  the  non-invcstment(/?). 

And  if  an  executor  is  directed  to  invest  money  in  the  funds,  or  to 
lay  it  out  upon  mortgage  at  51.  per  cent  interest,  and  he  has  from 
time  to  time  balances  in  his  hands,  and  neglects  to  do  so,  inquiries 
will  be  directed  at  the  original  hearing  concerning  the  balances  re- 
tained by  him,  and  the  prices  of  the  funds  at  the  times  when  such 
balances  were  in  his  hands(5'). 

In  respect  to  the  rate  of  interest  to  which  in  such  cases  he  shall  be 
liable,  if  he  make  use  of  the  money,  he  ought  to  pay  the  interest  he 
has  made.  He  ought  not  to  derive  any  personal  advantage  from  the 
trust  property.  If,  therefore,  it  be  established  in  evidence  that  he 
used  the  property  in  his  trade,  the  court  takes  it  for  granted  that  the 
trade  produced  5/.  per  cent  at  the  least,  and  it  is  incumbent  upon 
him  to  show  that  he  made  less.  But  in  case  of  mere  negligence  to 
lay  the  money  out  for  the  benefit  of  the  estate,  although  it  be  true 
that  com.plete  indemnity  is  not  attained,  unless  the  executor  pay  that 
interest  which  might  have  been  made,  yet  that  is  not  the  principle  on 
which  the  court  acts.  It  has  laid  down  a  rule  in  regard  to  the  quan- 
tum of  interest,  namely  four^;er  cent,  from  which  it  does  not  depart 
withoutsome  special  reason.  And,  mere  negligence  is  not  sufiicient 
to  produce  an  exception:  Consequently,  if  there  be  no  evidence  of 
the  executor's  having  employed  the  fund,  l)ut  mere  neglect  to  pay  it, 
he  cannot  be  charged  with  more  than  four  jjer  cent  interest.  And 
even  when  an  executor  mixed  the  fund  with  his  own  money,  at  his 
banker's,  the  benefit  derived  by  him  not  appearing.  Lord  Thurlow, 
C.  held  him  chargeable  only  with  interest  at  four  per  cent:  Al- 
though Lord  Loughborough,  C.  was  of  opinion,  in  which  Sir  William 
Grant,  M.  R.  in  a  late  case  appeared  to  concur,  that  if  a  trader  lodge 
money  at  his  banker's,  it  answers  the  purpose  of  his  credit,  and  it 

(m)  II  Vin.  Abr.  433,  innote.  Per-  294.     Ashburnham  v.  Thompson,  13 

kins  V.  Baynton,  1  Bro.  Ch.  Kep.  375.  Ves.  402. 

(rt)  Turner  v.  Turner,   1  Jac.  and  (/>)  Byrchall  v.  Bradford,  G  Madd. 

Walk.  Rep.  39.  Rep.  13. 

(0)  Newton  v.  Bennet,  1  Bro.  Ch.  (y)  Hockley  v.  Bantock,  1  Russ. 
Rep.  359.     Seers  v.  Hind,  1  Ves.  jun.  Rep.  141. 

(1)  Case  of  FUnthani' a  Appeal,  11  Serg.  k  Rawle,  16.  Scheiffelin  v.  Stewart,  1  Johns. 
Cha.  Rep.  620. 


CHAP.  X.]  EXECUTORS  IN  EQUITY.  481 

should  be  held  to  be  an  employment  in  his  trade(r).  And  Sir  John 
Leach,  V.  C.  in  a  subsequent  case,  charged  an  executor  with  interest 
at  five  per  cent,  who  mixed  his  testator's  money  at  his  banker's  with 
his  own,  receiving  only  an  interest  of  three  and  a  half  pe?'  cent,  in- 
stead of  laying  it  out  for  the  benefit  of  the  parties  entitled (5).  But 
although  the  court  does  not  usually  charge  an  executor  with  a  greater 
rate  of  interest  than  four^^er  cenf,  where  he  has  called  in  the  money 
for  purposes  of  the  will,  yet  if  it  were  outstanding  on  good  security, 
at  the  time  of  the  testator's  death,  at  five  ])er  cent,  and  he  call  it  in 
without  any  purpose  connected  with  the  trust,  and  hold  the  whole  in 
his  hands,  without  attempting  to  lay  it  out,  he  shall  be  charged  with 
interest  at  the  rate  of  five^er  cent,  on  the  ground  of  a  general  dere- 
liction of  duty  on  his  part;  and  though  a  small  part  of  the  money  so 
called  in  carried  only  four  and  a  half  ^cr  cent,  that  will  make  no  dif- 
ference in  his  favour(/). 

But  if  a  will  direct  the  executor  to  lend  at  the  best  interest  a  sum 
of  money,  which  at  the  time  of  the  testator's  death  is  outstanding  at 
four  per  cent,  and  the  executor  suffer  it  to  continue  so,  he  shall  be 
personally  liable  to  pay  five(z/).     And  so  if  executors  be  directed  to 
lay  out  the  residue  in  the  purchase  of  land,  or  upon  heritable  or  per- 
sonal securities,  at  such  rate  of  interest  as  they  should  think  reason- 
able, and  they  lend  the  fund  to  one  of  themselves  on  bond  at  four 
percent,  when  fiwe per  cent  might  have  been  made  by  heritable  or 
government  securities;   the  executor  borrowing  shall  pay  five  per 
cent;  for  in  contracting  Avith  himself  he  cannot  spare  himself(?;).   If 
there  be  an  express  trust  to  make  improvement  of  the  testator's  es- 
tate, and  the  executor  will  not  honestly  endeavour  to  improve  it,  he 
shall  be  considered  as  having  lent  the  money  to  himself  on  the  same 
terms  on  which  he  would  have  lent  it  to  others;   and  as  often  as  he 
ought  to  have  lent  it,  if  it  be  principal,  and  as  often  as  he  ought  to 
have  received  it,  and  lent  it  to  others,  if  the  demand  be  interest;  and 
consequently  he  shall  be  charged  with  interest  upon  interest:  but  in 
general  the  account  shall  not  be  taken  against  him  from  the  moment 
of  the  testator's  death  upon  all  sums  received  and  paid  by  him,  but 
some  time  is  fixed,  at  which  the  principal  is  said  to  be  in  his  hands, 
so  as  that  it  was  capable  of  being  laid  out;  and  he  is  then  to  be  first 
charged  with  the  principal  and  with  subsequent  interest,  and  for  that 
purpose  annual  rests  in  the  taking  of  such  accounts  are  most  usual. 
But  where  a  testator  gave  a  legacy  to  his  executor  in  full  for  his 
trouble  in  executing  the  will,  and  declared  that  he  should  have  no 
commission,  nor  derive  any  advantage  from  keeping  any  money  in 
his  hands  without  duly  accounting  for  the  legal  interest  thereof;  and 
after  providing  for  the  maintenance  and  education  of  his  children  out 
of  the  interest  of  their  respective  portions,  directed  that  the  surplus 
interest  should  accumulate  for  their  benefit,   and  be  laid  out  on  the 
public  funds  for  that  purpose;  and  the  executor  kept  the  fund  in  his 

(r)  Rocke  v.  Hart,  11  Ves.  jun.  58.  Crackclt  v.  Bctliune,  1  Jac.  &  Walk. 

Sutton  V.  Sharpe,  1  Russ.  Rep.  14(j.  Rep.  OHO. 

(i)  Harris  V.  Uocura,  April  1818,  MS.  (u)  Forbes  v.  Ross,  2  Br.  Ch.R.  429 

(<)  Mcrley  v. Ward,  UVes.  juu.  581.  (??)  Forbes  v.  Ross,  2  Cox's  R.  113. 


d81  OF  REMEDIES  AGAINST  [rOOK  III. 

hands  for  a  long  period  of  time,  without  attempting  any  accumula- 
tion; he  was  held  liable  to  interest  at  five  7;er  ce?z/,  on  all  the  sums  of 
money  which  came  to  his  hands,  from  the  time  he  received  them  re- 
spectively so  long  as  they  continued  in  his  hands:  and  in  taking  the 
accounts  the  Master  w^as  ordered  to  make  half-yearly  rests,  for  the 
purpose  of  charging  him  with  compound  interest  (that  is  to  say)  by 
stating  the  whole  amount  of  the  interest  which  had  accrued  at  the  end 
of  each  half  year,  and  adding  that  to  the  principal  of  the  next  half- 
year(;;).(l) 

Nor,  in  case  the  executor  be  expressly  directed  to  improve  the  es- 
tate, shall  he  be  permitted  to  redeem  himself  by  accounting  upon  the 
supposition  of  the  money  having  been  laid  out  in  the  public  funds,  if 
in  point  of  fact  it  were  not  so  laid  out;  or  if  he  laid  out  the  property 
in  the  public  funds,  and  then  sold  out  the  stock  at  a  great  advance,  if 
at  the  close  of  the  trust  the  price  be  less  than  he  sold  at,  it  is  not  suf- 
ficient for  him  to  offer  back  the  stock,  but  he  shall  answer  for  the 
amount  of  the  money  for  which  he  sold  it  out{q).  Upon  the  same 
principles,  in  case  of  the  bankruptcy  of  an  executor  having  failed  to 
comply  with  a  direction  in  the  will  to  accumulate  the  interest,  his 
estate  shall  be  charged  with  interest  at  the  rate  of  five  per  cent,  with 
rests(7').  But  an  executor  shall  not  be  charged  with  interest  on  a 
balance  in  his  hands,  which  he  retained  under  a  misapprehension,  for 
which  there  was  some  colour,  of  his  having  a  right  to  h{s). 

Nor,  if  an  executor  compound  debts  due  from  the  testator,  or  buy 
them  in  for  less  than  their  amount,  shall  he  be  personally  entitled  to 
the  benefit  of  the  composition:  but  other  creditors,  or  the  legatees,  or 
the  party  entitled  to  the  surplus,  shall  have  the  advantage  of  it(^).(2) 

Yet  if  an  executor  lend  money  on  real  security,  which  at  that 
time  there  was  no  reason  to  suspect,  and  afterwards  such  security 
prove  bad,  he  shall  not  be  accountable  for  the  loss,  any  more  than  he 

{p)  Raphael  V.  Boehm,  11  Ves.jun.  (s)  Bruere  v.  Pemberton,  12  Ves. 

92,  and  13  Ves.  jun.  407.  jun.  386. 

(q)  Ibid.  108.  (/)  11    Vin.    Abr.  433.      Anon.    1 

(r)  Dorford  v.  Dorford,  12  Ves.jun.  Salk  155,  pi.  4. 
127. 

(1)  By  the  17th  and  18tii  sections  of  the  act  of  29th  March,  1832,  "  relating  to  Or- 
phan's Courts,"  (Pamph.  Laws,  194),  it  is  provided,  that  "no  executors  or  administra- 
tor shall  be  liable  to  pay  interest  but  for  the  surplusage  of  die  estate  remaining  in  his 
hands  or  power  when  his  accounts  are,  or  ought  to  be,  settled  and  adjusted  in  the  Regis- 
ter's office:  Provided,  that  nothing  herein  contained  shall  be  construed  to  exempt  an  ex- 
ecutor or  administrator  from  liability  to  pay  interest  where  he  may  have  made  use  of  the 
funds  of  his  estate  for  his  own  purposes,  previously  to  die  time  when  his  accounts  are,  or 
ought  to  be,  settled  as  aforesaid."  (Sect.  17.)  "  The  amount  of  interest  to  be  paid  in  all 
cases  by  executors,  adminlsti-ators,  or  guardians,  shall  be  determined  by  the  Orphan's 
Court,  imder  all  the  circumstances  of  the  case,  but  shall  not,  in  any  instance,  exceed  the 
legal  rate  of  interest  for  the  time  being."  (Sect.  18).  See,  for  tlie  doctrine  in  Pennsyl- 
vania in  relation  to  interest  in  cases  of  executors  and  administrators,  before  the  act  of  As- 
sembly, the  case  of  The  Matter  of  the  Estate  of  Peter  M'Call,  1  Ashm.  Rep.  357,  where 
the  American  cases,  and  the  late  English  cases  are  cited.  See  also  Merrick's  Estate,  1 
Ashm.  Rep.  305. 

(2)  Case  of  Ueager''s  Executors,  15  Serg.  is.  Rawle,  05. 


CHAP.  X.]  EXECUTORS  IN  EQUITY.  481 

would  have  been  entitled  to  the  produce  of  it  if  it  had  been  suffi- 
cient(M).  So  where  A.  an  executor,  paid  the  assets  into  the  hands 
of  B.,  his  co-executor,  with  whom  the  testator  was  used  to  keep  cash 
as  his  banker;  on  the  failure  of  B.,  the  court  held,  that  A.  ought  not 
to  suffer  for  having  trusted  him,  whom  the  testator  trusted  in  his 
lifetime,  and  at  his  death  appointed  one  of  his  executors(t^). 

So,  although,  generally  speajiing,  if  an  executor  compound  or  re- 
[482]lease  a  debt  to  the  testator,  he  shall  answer  for  the  amount; 
still,  if  he  appear  to  have  acted  for  the  benefit  of  the  estate,  he  shall 
not  be  charged(ar).(2) 

Formerly  an  executor  could  not  be  compelled  of  course  to  secure 
a  future  legacy,  on  the  principle  that  where  the  testator  had  thought 
fit  to  repose  a  trust,  unless  some  breach  of  it  were  shown,  or  a  ten- 
dency to  a  breach,  the  court  would  continue  to  confide  in  the  same 
hand;  for  such  a  purpose  it  was  necessary  to  show  misconduct  on 
the  part  of  the  executor,  or  his  insolvency(y):  Or,  in  the  case  of  an 
executrix,  that  she  had  married  a  person  in  needy  circumstances(r). 
But,  according  to  the  present  practice,  where  a  legacy  is  payable  at 
a  future  period,  the  legatee,  without  any  suggestion  of  an  abuse  of 
the  trust,  or  that  the  fund  is  in  danger,  has  a  right  to  call  upon  the 
executor  to  have  it  divided  from  the  bulk  of  the  estate,  and  secured 
and  appropriated  for  his  benefit,  as  well  where  it  is  contingent,  as 
where  it  is  vested(fl!).  Annuitants  are  likewise  entitled  to  the  same 
equity,  and  to  compel  the  executor  to  set  apart  a  sufficient  fund  for 
the  regular  payment  of  their  annuities(6). 

[483]  An  executor  is  in  general  personally  bound  by  an  admission 
of  assets  express,  or  implied,  as  by  the  payment  of  interest:  but 
in  either  case  he  may  be  let  in  to  show,  why  it  should  not  charge 
him,  as  that  the  money  was  deposited  in  the  hands  of  bankers,  who 
have  failed;  or  that  his  admission  was  grounded  on  a  mistake(c). 
Such  admission  is  also  waived  by  the  plaintiff's  proceeding  to  an 
account  of  assets,  and  procuring  a  receiver  to  be  appointed((/). 

In  case  an  executor  be  decreed  to  pay  interest  on  account  of  a 
breach  of  trust,  or  because  he  has  neglected  to  lay  money  out  for 
the  benefit  of  the  estate(e),  he  is  liable  to  costs  of  course(/).  If  an 
executor  have  acted  fraudulently,  the  court  will  decree  costs  against 

(«)  Brown  v.  Litton,  1  P.  Wms.  141.  v.  Harris,  3  Bro.  Ch.  Rep.  365.     Fer- 

4  Burn.  Eccl.  L.  428.     Supr.  428.  rand  v.  Prentice,  Ambl.   273.     Prac. 

{w)  4  Burn.  Eccl.  L.  428,    Church-  Reg.  2d  edit.  270. 
ill  V.  Lady  Hobson,  1  P.  Wms.  243.  (6  )Slanning  v.  Style,  3  P.  Wms. 

(z)  1 1  Vin.  Abr.  432.     Blue  v.  Mar-  335. 
shall,  3  P.  Wms,  381,   Vid,  supr.  429.  (c)  Horsley  v.  Chaloner,  2  Ves.  85. 

(y)  Slanning  v.  Style,  3  P.  Wms.         (d)  Wall  v.  Bushby,  1  Bro,  Ch,  Rep. 

336.    1 1  Vin.  Abr.  42G,  427, 428.  432.  484. 
3Bac.  Abr.8,  1  Atk.  505,  3  Atk,  101.  (c)  Newton  v.  Bennet,  1  Bro.  11. 

(z)  Rous  V,  Noble,  2  Vern.  249.  3G2.     Rocke  v.  Hart,  11  Ves.  jun.  58. 

(a)  4  Bac.  Abr.  448.     Green  v.  Pi-         (/)  Prac,  Reg.  2d  edit.  210.    Seers 

got,  1  Bro,  Ch,  Rep,  103,     Cooper  v.  v.  Hind,  1  Ves,  jun,  294.     Sed  vide 

Douglas,  2  Bro,  Ch.  Rep,  232.  Strange  Ashburnham  v,Thonipson,13  Vos.  402, 

(1)  l-'usc'i/  V.  Clcmson,  9  Scrg.  &.  Kawlc,  iiU4, 


483  OF  REMEDIES  AGAINST  [bOOK  III. 

him(i}"),  altliough  the  will  direct  that  his  expenses  shall  be  allowed 
out  of  the  testator's  estate(A).  He  is  also  subject  to  costs  in  equity 
as  well  as  at  law,  if  he  has  misconducted  himself  by  paying  simple 
contract  debts  in  preference  to  bond-creditors(/). 

But  an  executor  shall  have  his  costs,  although  he  make  a  claim, 
and  fail,  if  it  were  merely  a  submission  of  the  point  for  the  opinion 
of  the  court(A'). 

[484]  If  two  executors  or  administrators  join  in  a  receipt,  one 
only  of  whom  receives  the  money,  equity  has  been  stated  to  adopt 
this  distinction,  that  in  such  case,  each  is  liable  for  the  whole(/)  as 
to  creditors,  who  are  entitled  to  the  full  benefit  of  law,  although  one 
of  such  personal  representatives  might  have  given  an  efl'ectual  dis- 
charge; but  that  with  respect  to  legatees,  or  parties  claiming  distri- 
bution, as  they  have  no  legal  remed)'^,  one  executor  or  administrator 
shall  not  be  charged  merely  by  joining  in  the  receipt,  wlien  the 
other  has  received  the  money;  for  that  the  addition  of  his  name  is 
only  matter  of  form,  the  substantial  part  is  the  act  of  receiving,  and 
is  alone  regarded  in  conscience(7rt).(l )  But  this  distinction  between 
legatees  or  parties  in  distribution,  and  creditors,  appears  to  rest  on 
no  authority (^?,).  The  rule  is  general,  that  executors,  joining  in  a 
receipt,  shall  all  be  answerable(o).  It  has,  indeed,  in  some  instances 
been  broken  in  upon(;j),  and  Sir  Richard  P.  Arden,  M.  R.  denied 
it  to  be  universally  applicable((7).  It  seems  an  exception,  if  an  ex- 
ecutor receive  the  money  without  the  consent  of  his  co-executor, 
and  they  afterwards  sign  the  receipt(r),  [485]  for  by  that  act  they 
did  not  enable  him  to  obtain  the  payment.  So  if  one  executor 
places  the  property  in  the  hands  of  the  other,  who  happens  to  be 
a  banker,  or  in  such  a  situation  that  the  act  is  not  improvident;  he 
shall  not  be  charged  in  case  of  a  loss,  for  if  he  had  been  a  sole  ex- 
ecutor, and  had  under  the  same  circumstances  deposited  the  money 
with  a  banker,  he  would  not  have  been  liable(5). 

This,  however,  is  clear  from  all  the  cases,  that,  where  by  any  act 
done  by  one  executor,  anj^  part  of  the  estate  comes  to  the  hands  of 

(g-)  Reech  v.  Kinnegal,  1  Ves.  126.  Leigh  v.  Barry,  3  Atk.  584.   Ex  parte 

Horsley  v.  Chaloner,  2  Ves.  85.  Belchier,    Ambl.    219.       Saddler   v. 

(/;)  Prac.  Reg.  2d  edit.  150,  151.  Hobbs,  2  Bro.  Ch.  Rep.  116. 

Hathornthwaite  V.  Russel,  2  Atk.  126.  (p)  Churchill  v.  Hopson,  1  Salk. 

(t)  Jeffries  v.  Harrison,  1  Atk.  468.  318.     S.  C.  1  P.  Wms.  241.     1  P. 

(A-)  Prac.  Reg.  2d  edit.  152.     Rash-  Wms.  83,  note  (1). 

ley  V.  Masters,  1  Ves.  jun.  205.  (y)  Scurfield  v.  Howes,  3  Bro.  Ch. 

(/)  3  Bac.  Abr.  31.  Rep.  94. 

(ot)  Churchill  v.  Hopson,  1  Salk.  (r)  1  P.  Wms.  241,  note  1.  83,  note 

318.     S.  C.  1  P.  Wms.  241.     1  Eq.  1.     Read  v.   Truelove,   Ambl.     417. 

Ca.  Abr.  398.   Murrell  v.  Cox,  2  Vern.  Sadler  v.  Hobbs,    2  Bro.  Ch.    Rep. 

570.  114.     Scurfield  V.  Howes,  3  Bro.  Ch. 

(«)  Sadler  v.  Hobbs,  2  Bro.  Ch.  Rep.  90.     Hovey  v.  Blakeman,  4  Ves. 

Rep.  117.     1  P.  Wms.  243,  in  note.   3  jun.  596.   Westley  v.  Clarke,  1  Eden's 

Bac.  Abr.  31,  in  note.  Rep.  357. 

(o)  Fellowes  V.  Mitchell,  1  P.  Wms.  (s)  Chambers  v.  Minchin,  7  Ves. 

81.     Aplyn  v.  Brewer,  Prec.  Ch.  173.  jun.  197,  198. 

(1)  Ace.  Jlpptal  ofBroxvn,  Ex.  of  Edgar,  1  Dull.  Rep.  311. 


CHAP.  X.]  EXECUTORS  IN  EQ,UITY.  485 

his  co-executor,  the  former  will  be  answerable  for  the  latter,  in  the 
same  manner  as  he  would  have  been  for  a  stranger,  whom  he  had 
enabled  to  receive  it(^).  Therefore  where  executors  joined  in  a 
transfer  of  stock  to  a  co-executor,  upon  a  representation  that  it  was 
required  for  debts,  and  he  wasted  part  of  the  produce,  they  were 
charged  with  the  whole  that  they  could  not  prove  the  application  of 
to  that  purpose(w). 

Co-trustees  are  in  this  respect  contradistinguished  from  co-execu- 
tors. In  the  case  of  co-trustees,  as  each  hath  not  a  power  over  the 
whole  of  the  fund,  their  joining  in  a  receipt  is  necessary,  and,  con- 
sequently, although  they  join  in  such  receipt,  yet  it  is  a  general  rule 
that  the  trustee  who  receives  the  money  shall  be  alone  chargeable. 
But  in  the  case  of  co-executors,  each  has  a  power  over  the  fund,  and 
a  co-executor  joining  in  a  receipt  is  altogether  unnecessary;  there- 
fore, if  he  act  without  necessity,  and  join  with  his  co-executor  in 
such  receipt,  he  shall  in  general  be  responsible  for  the  consequences: 
He  assumes  a  power  over  the  property,  and  it  shall  [486]  not  be 
afterwards  permitted  to  him  to  say,  that  he  had  no  control  over 
it(x).  So,  if  executors  confiding  in  the  representation  of  their  co- 
executor,  that  stock  standing  in  the  testator's  name  is  wanting  for 
the  payment  of  debts,  do  join  in  a  transfer  of  the  stock  to  him,  if  he 
misapply  the  whole  or  any  part  of  it,  they  are  chargeable  with  him 
to  the  extent  of  such  misapplication(y).  In  like  manner,  if  an  ex- 
ecutor has  been  dealing  with  the  assets  much  beyond  that  period  of 
time  in  which,  in  the  ordinary  course,  debts  would  be  paid,  and  he 
applies  to  his  co-executors  to  have  such  fund  transferred  to  him 
alone,  and  on  inquiring,  they  satisfy  themselves  that  there  are  debts 
unpaid,  and  his  real  purpose  was  to  apply  the  fund  in  discharge  of 
such  debts,  if  it  afterwards  appear  that  he  had  in  his  hands  another 
fund  sufficient  for  the  payment  of  thosfe  debts,  and  such  application 
of  the  fund  was  not  necessary,  nor  was  it  in  fact  devoted  to  the  pay- 
ment of  debts,  they  shall  be  responsible.  They  are,  in  such  case, 
subject  to  the  imputation  of  negligence  in  being  too  easy  with  their 
co-executor;  too  remiss  in  not  inquiring  how  for  so  a  longtime  he 
had  been  acting  in  the  administration  of  the  assets(2^). 

But  within  a  reasonable  time,  if  executors,  after  the  testator's 
death,  join  in  a  transfer  of  stock  to  their  co-executor,  on  his  repre- 
sentation, that  it  is  requisite  for  the  payment  of  debts:  they  are 
not  responsible  if  they  can  prove  he  applied  it  to  that  purpose,  al- 
though he  had  possessed,  if  not  by  their  means,  other  part  of  the 
assets,  which  he  had  wasted(a).     And  though  it  be  a  settled  rule, 

(0  1  P.  Wms.  241,  note  1.     3  Bro.  jun.  323,  324. 
Ch.  Rep.  97.   Doyle  v.  Blake,  2  Scho.  (,y)  Lord  Shipbrook  v.  Lord  Hni- 

&  Lef.  231.  chiiibrook,  11  Ves  jun.  252.     16  Ves. 

(M)Lord   Shipbrook  v.   Lord   Hin-  47H. 
chinbrook,  1«  Ves.  jun.  477.     Under-  (z)  Lord   Shipbrook  v.  Lord  Hiu- 

wood  V.  Stevens,  1  Meri.  Rep.  713.  chinbrook,  11  Ves.  jun.  254. 

(x)   Chambers  v.  Minchin,  7  Ves.  («)  Ibid.  251. 

jun.  186.     Brice  v.  Stokes,    11  Ves. 
42 


486  OF  REMEDIES  AGAINST  [bOOK  III. 

that  if  an  executor  contribute  in  any  way  to  enable  the  other  to 
obtain  ])OSsession  of  the  assets,  he  shall  be  answerable  for  their  mis- 
application; yet  the  rule  does  not  extend  to  those  cases,  in  which  an 
executor  is  merely  passive,  and  does  not  obstruct  the  other  in  re- 
ceiving the  property,  for  it  is  not  incumbent  upon  one  executor  by 
force  to  prevent  its  getting  into  the  hands  of  his  co-executor(6). 

So  a  co-executor,  who  proved,  but  never  acted,  having  received 
a  bill  by  the  post  on  account  of  the  estate,  and  transmitted  it  im- 
mediately to  the  acting  executor,  was  held  not  to  be  responsible  for 
the  administration  of  the  property(c).  So  if  A.,  interested  in  the 
fund,  act  in  authorizing  B.,  one  executor,  to  part  with  it  to  C,  his  co- 
executor,  and  it  be  wasted,  B.  shall  not  be  responsible  to  the  extent 
of  A.'s  interest:  But  B.  shall  be  responsible  to  the  other  parties, 
who  may  be  interested  in  the  fund,  in  case  they  did  not  acquiesce  in 
his  transferring  it  to  C.(d). 

Although  one  executor  admit  assets,  an  account  shall  be  decreed 
against  his  co-executor,  who  does  not  admit  them(e).  And  where 
an  infant  legatee  filed  a  bill  for  an  account  against  two  executors,  al- 
though one  of  them  in  his  answer  denied  having  either  proved  the 
will,  or  received  any  assets,  the  account  was  directed  against  both(/). 

If  an  executor  under  the  express  authority  of  the  will  carry  on 
trade  with  the  testator's  general  assets,  not  only  such  assets,  but  even 
his  own  property,  will  be  subject  to  his  bankruptcy. 

If  the  trade  be  beneficial,  the  profits  are  applicable  to  the  purposes 
of  the  will,  and  the  executor  derives  no  personal  benefit  from  the 
success  of  the  trade.  If  the  trade  prove  a  losing  concern,  the  execu- 
tor, on  a  failure  of  the  assets,  will  be  personally  liable  to  the  loss. 

[487]  If  an  executor,  without  any  authority  from  the  will,  take 
upon  himself  to  trade  with  the  assets,  the  testator's  estate  will  not 
be  liable  in  case  of  his  bankruptcy  ;(1)  the  testator's  creditors  and 
legatees  will  have  aright  to  prove  demands  for  such  of  the  assets  as 
have  been  wasted  by  the  executor  in  the  trade,  in  proportion  to  their 
respective  interests:  And  with  respect  to  such  of  the  assets  as  can  be 
specifically  distinguished  to  be  part  of  the  testator's  estate,  they  will 
not  pass  by  the  assignment  of  the  commissioners;  the  executor  hold- 
ing them  alie)io  jure,  they  will  not  be  liable  to  his  bankruptcy(^). 

But  the  testator  may  by  his  will  qualify  the  power  of  his  execu- 
tor to  carry  on  trade,  and  may  limit  it  to  a  specific  part  of  the  as- 

(6)  Langford  v.  Gascoigne,  11  Ves.  Wall  v.  Bushby,  1  Bro.  Ch.  Rep.  488. 

jun.  383.  (/)  Price  v.  Vaughan,  2  Anstr.  Rep. 

(c)  Balchen  v.  Scott,  2  Ves.  jun.  524. 

678.  (g)  See  Ex  parte  Garland,  10  Ves. 

(rf)  Brice  v.  Stokes,  11  Ves.  jun.  jun.  110.     Sup.  166,  &  Cooke's  B.  L. 

319.  4th  edit,  67;  and  Whitmarsli's  B.  L. 

(e)  Com.  Dig.  Chancery  (2  G.  3.)  2d  edit.  268. 
Norton  v.  Turville,  2  P.  Wms.  145. 


(I)  Nor  to  any  loss  occasioned  by  such  unauthorized  trading.  Ball  v.  Callaghaji's  Adm. 
1  Sersr.  &  Rawk%  241. 


CHAP.  X.]  EXECUTORS  IN  EQUITY.  487 

sets,  which  he  may  sever  from  the  general  mass  of  his  property  for 
that  purpose;  and  then,  in  the  event  of  the  bankruptcy  of  the  execu- 
tor, the  rest  of  the  assets  will  not  be  affected  by  the  commission, 
although  the  whole  of  the  executor's  private  property  will  be  subject 
to  its  operation(A). 

If  the  executor  of  a  trader  only  dispose  of  the  stock  in  trade,  it 
will  not  make  him  a  trader,  or  subject  to  a  commission  of  bank- 
ruptcy. Thus,  where  the  executor  of  a  wine-cooper  found  it  neces- 
[488]  sary  to  buy  wines  to  refine  the  stock  left  by  the  testator,  this 
was  held  not  to  constitute  him  a  trader(«). 

If  an  executor  become  a  bankrupt,  his  bankruptcy  does  not  divest 
him  of  his  legal  right  of  executorship,  nor  does  the  commissioner's 
assignment  affect  the  assets,  except  in  regard  to  such  beneficial  interest 
as  thebankrupt  himself  maybe  entitled  to.  But,  although  a  bankrupt 
executor  may  strictly  be  the  proper  hand  to  receive  the  assets,  if  his 
assignees  be  possessed  of  any  part  of  the  property,  the  Court  of 
Chancery  will,  for  the  benefit  of  creditors  and  legatees,  appoint  a  re- 
ceiver for  the  same;  or  will  direct  the  bankrupt  himself  to  be  admit- 
ted a  creditor  for  what  he  shall  be  indebted  to  the  estate;  nor  is  this 
practice  incongruous,  as  he  acts  in  auter  droit.  Yet  to  prevent  em- 
bezzlement, the  court,  on  such  proof,  will  order  the  dividends  to  be 
paid  into  the  bank,  subject  to  the  demands  on  the  testator's  estate(A). 
So  where  A.,  a  bankrupt,  and  also  B.  claimed  to  be  executors  of  a 
creditor  of  A,,  and  a  suit  was  pending  in  the  ecclesiastical  court  in  re- 
gard to  the  executorship,  the  Lord  Chancellor  permitted  B.  to  prove 
tlie  debt  [489]  under  the  commission,  and  directed  the  dividends  to  be 
paid  into  the  bank,  to  abide  the  event  of  the  litigation(/).  And  where 
an  executor,  inconsequence  of  his  bankruptcy,  becomes  destitute,  and 
incapable  of  exercising  his  functions,  and  elects  to  relinquish  his  in- 
terest in  the  testator's  property,  the  Court  of  Chancery  will  permit  a 
creditor  of  the  testator  to  file  a  bill  for  himself,  and  to  call  in  the  out- 
standing assets  for  the  purpose  of  administering  them(m).  And  a 
receiver  has  been  appointed  before  answer  upon  an  affidavit  of  mis- 
application and  danger  to  the  property  in  the  hands  of  an  executor, 
and  the  co-executors  consenting  to  the  order(w). 

An  executor  being  out  of  the  jurisdiction  in  Scotland,  a  receiver 
was  appointed  under  the  36  Geo.  3.  c.  90,  but  administration  having 
been  granted,  a  motion  was  made  on  the  part  of  the  administrator  for 
an  injunction  to  restrain  the  receiver  froin  acting.  The  Lord  Chan- 
cellor referred  it  to  the  Master  to  reconsider  the  appointment  of  a 

(Ji)  Ex  parte  Garland,  10  Ves.  jun.  parte  Leek,  2Bro.  Cli.  Rep.  596.  Vid. 

110.  also  supr.  429,  and  Whitmarsh's  B.  L. 

m  Cooke's  B.  L.  4th  edit.  C7,  and  2d  edit.  269. 

Whitmarsh's  B.  L.  2d  edit.  16.  (/)  Ex  parte  Shakeshaft,  3  Bro.  Ch. 

(A:)  Cooke's  B.  L.  133,  134,  135.  Rep.  198. 

137.     Stone,  131.     Ex  parte  Ellis,  1  (/«)  Burroughs  v.  Elton,  11  Ves. 

Atk.  101.     Ex  parte  Butler,  ib.  213.  jun.  29. 

Butler  V.  Richardson,  Ambl.  74.     Ex  (n)  Middleton  v.  Dodswell,  13  Ves, 

parte  Marklaiid,  2  P.  Wins.  546.     Ex  266. 


489  REMEDIES  AGAINST  EXECUTORS  [bOOK  III. 

receiver,  regard  being  had  to  the  circumstance  of  administration  hav- 
ing been  granted(o). 

A  writ  of  ne  exeat  regno  against  a  feme  covert  administratrix, 
cannot  be  sustaincd(jy). 


Sect.  V. 

Of  remedies  against  executors  and  administrators  in  the  Eccle- 
siastical Court. 

Legatees,  and  the  next  of  kin,  may  proceed  against  the  executor 
or  administrator  in  the  ecclesiastical  court.  That  court  has  not  only 
jurisdiction  over  the  probate  of  wills,  and  the  granting  of  adminis- 
trations, but  has  also,  as  incident  to  the  same,  authority  to  enforce 
the  payment  of  legacies(a);  and,  according  to  the  statute,  the  distri- 
bution of  an  intestate's  eflrects.(l)  In  respect  to  legacies,  the  cogni- 
zance of  them  in  former  times  belonged  exclusively  to  that  judicature. 
The  Court  of  Chancery,  till  Lord  Nottingham  extended  the  system 
of  equitable  jurisprudence,  administered  no  relief  to  legatees(Z>),  In 
regard  also  to  distribution,  equity,  as  the  act  of  parliament  contains  no 
negative  words,  has  a  concurrent  jurisdiction  with  the  ordinary,  and 
in  both  cases  as  being  armed  with  [490]  larger  powers,  affords  a 
more  effectual  relief(c). 

As  a  court  of  equity,  and  the  spiritual  court  has  in  these  points 
a  concurrent  jurisdiction,  wliicliever  of  them  has  first  possession  of 
the  cause  has  a  right  to  proceed(^/).(2)  But  where  it  appears  that 
the  ordinary  cannot  administer  complete  justice,  equity,  without  re- 
gard to  such  priority,  will  interpose.  As,  where  a  husband  sues  in 
the  spiritual  court  for  a  legacy  bequeathed  to  the  wife,  the  Court  of 
Chancery  will  grant  an  injunction  to  stay  the  proceedings,  since  the 
ecclesiastical  judge  has  no  authority  to  compel  a  settlement(e).     So  a 

(0)  Faith  V.  Dunbar,  Coop.  Rep.      134. 

200.  {d)  4  Bac.  447.  Toth.  114.  Nicho- 

Ip)  Pannel  v.  Tayler,  1  Turn.  96.  las  v.  Nicholas,  Prec.  Ch.  548. 

(a)  4  Bac.  Abr.  446.     3  Bl.  Com.  (e)  Hill   v.   Turner,    1    Atk.    516. 

98.  .Tewson  v.  Moulson,  2  Atk,  420.     Ni- 

(i)  Deeks  v.   Strutt,  5  Term  Rep.  cholas  v.  Nicholas,  Prec,  Chan.  548. 

692.     See  1  P.  Wms.  575.  2  Ves.  jun,  67G.     Meales  v.  Meales,  5 

(c)  Vid,  2  Fonbl.  2d  edit,  414,  note  Ves.  jun.  517,   in  note.     Ses  also  10 

(d).     Matthews  v.  Newby,  1   Vern.  Ves.  jun.  577,  and  supr.  321. 

(1)  See  an  instance  in  which  Gov.  Bull  (of  South  Carolina)  in  the  year  1765,  in  his 
character  of  Ordinary,  summoned  an  administrator,  at  the  instance  of  the  {guardians  of  the 
intestate's  children,  to  account  for  his  administration,  and  upon  his  non-compliance,  pass- 
ed sentence  of  the  greater  excommunication  against  him.  Grimke  onExecutors,  preface, 
page  vii. 

(2)  See  1  Hagg.  Rep.  540. 


CHAP.  X.]  IN  THE  ECCLESIASTICAL  COURT.  490 

legacy  given  to  an  infant  is  more  properly  cognizable  in  equity,  since 
that  jurisdiction  can  alone  secure  the  money  for  the  child's  benefit(y). 

The  spiritual  jurisdiction  extends  to  legacies  only  of  personal  pro- 
perty; therefore,  if  land  be  devised  to  be  sold  for  the  payment  of  le- 
gacies, they  can  be  sued  for  only  in  a  court  of  equity,  because  they  arise 
out  of  the  real  estate(^).  Equity  has  also  the  exclusive  cognizance  of 
those  cases  in  which  there  is  a  will,  and  the  [491]  residue  is  undis- 
posed of;  for  then,  as  we  have  seen  (A),  the  executor  is  a  trustee  for 
the  residue,  and  the  ordinary  cannot  compel  a  distribution  of  it, 
because  he  cannot  enforce  the  execution  of  a  trust(/).  Nor  has  he  a 
power  to  compel  the  debtor  of  an  intestate  to  pay  his  debt  into  court, 
although  such  debtor  be  the  person  applying  for  a  distribution,  for 
that  would  be  to  hold  a  plea  of  debt;  but  in  that  case  he  may  refuse  to 
proceed  to  a  distribution  till  the  party  shall  bring  it  in(A').  So,  it 
seems,  that  if  a  legatee  take  a  bond  from  the  executor  for  payment  of 
the  legacy,  and  afterwards  sue  him  in  the  spiritual  court  for  the  same, 
a  prohibition  will  be  granted;  for  by  taking  the  obligation,  the  nature 
of  the  demand  is  changed,  and  becomes  a  debt  recoverable  in  the  tem- 
poral courts(/). 

In  case  a  legatee  or  the  next  of  kin  elect  to  sue  in  the  spiritual 
court,  the  executor  or  administrator  must  there  exhibit  an  inventory 
of  the  property,  if  he  has  not  done  so  before,  and  bring  in  an  ac- 
count(m). 

Of  the  nature  of  an  inventory  1  have  already  treated(w).  It  is 
to  contain  a  full,  true,  and  pefect  schedule  of  the  deceased's  effects. 
[492]  The  account  is  to  state  in  what  manner  they  have  been  dis- 
posed of(o). 

Neither  an  executor  nor  an  administrator  can  be  cited  by  the  ordi- 
nary ex  officioio  account(/;).  The  executor,  we  have  seen,  is  bound 
by  his  oath  to  make  an  inventory  of  the  personal  estate,  and  exhibit  the 
same  into  the  registry  of  the  spiritual  court  at  the  time  assigned  him 
for  that  purpose,  and  render  a  just  account,  when  lawfully  required, 
that  is  to  say,  at  the  suit  of  a  legatee;  and  in  such  case  he  is  bound 
not  only  to  produce  an  account,  but  also  to  prove  the  difli'erent  items 
of  it(5r). 

The  payment  of  sums  under  forty  shillings  shall  be  proved  merely 

(/)  Howell  V.   Waldron,  1  Vern.  (/)  Goodwyn  v.  Goodvvyn,  Yelv.  38. 

26.     Anon.  1  Atk.  491.  Luke  v.  Alderne,   2   Vern.  31.     Sed 

{g)  4  Bac.  Abr.  446.     Dyer,  151.  Dodderidge,   J.    contr.  2   Roll.    Rep. 

Palm.  120.     Cro.  Jac.  279.  364.  Cro.  160,  Vid.  Sadler  v.  Daniel, 10  Mod.  21. 

Car.  16.     2  Roll.  Abr.  285.     Bastard  {m)  4  Burn.  Eccl.  L.  445. 

V.  Stockweil,  2  Show.  50.  (?/)   Vid  supr.  247,  et  scq. 

{h)  Supr.  351.  479.  {<,)  (Ircerside  v.  Benson,  3  Atk.  252. 

(t)  2  Fonbl.  2d  edit.  414,  note  (d)  {p)  Com.  Dig.  Admon.  C.  3.  Arch- 
ad  lin.  Petit  V.  Smith,  5  Mod.  247.  bishop  of  Canterbury  v.  Wills,  1  Salk. 
Hatton  V.  Hatton,  Stra.  865.  Petit  v.  315,316.  Greerside  v.  Benson,  3  Atk. 
Smith,  Ld.  Raym.  86.    Rex  v.  Itaiiies,  253. 

ib.  363.     Farringtonv.  Knightly,  1  J*.  (y)  Archbishop    of    (Canterbury   v. 

Wms.  546,  547.  519.  Wills,  1  Salk.  316.  Vid.  also  Archbp. 

(J()  Gierke  v.   Gierke,  Ld.  Raym.  of  Canterbury  v.  IJouse,  Gowp.  141. 
585. 


492  REMEDIES  AGAINST  EXECUTORS  [bOOK  III. 

by  his  oatli,  if  there  appear  no  fraud  by  dividing  greater  sums  into 
less.  Of  the  payment  of  sums  to  a  higher  amount  vouchers  must  also 
be  exhibited (r).  The  adverse  party  shall  be  at  liberty  to  disprove 
such  account.  If  it  be  false,  the  executor  shall  be  liable  to  the  pen- 
alties of  perjury(.9). 

After  the  death  of  an  executor  sums  under  forty  shillings  shall 
not  be  allowed  on  the  oath  of  his  representative;  for  such  payments 
can  be  substantiated  only  by  him  who  made  thcm(/). 

[493]  In  regard  to  the  administrator,  before  the  statute  of  distri- 
bution, according  to  the  condition  of  the  administration  bond,  he 
also  was  bound  to  exhibit  an  inventory  and  render  an  account  when 
required.  But  pursuant  to  that  statute  the  administrator,  we  may 
remember,  enters  into  a  bond  with  two  or  more  sureties,  conditioned 
for  his  exhibiting  an  inventory  of  the  efibcts,  and  an  account  of  the 
same,  at  the  respective  times  specified.  Tiierefore,  without  citation 
or  suit,  he  ought,  in  strictness,  to  appear  on  the  day,  and  produce 
his  account  in  court.  But,  in  that  case,  it  is  neither  verified  by  oath, 
nor  liable  to  be  examined.  If,  however,  a  party  in  distribution,  who 
is  in  the  nature  of  legatee  by  statute,  and  therefore  entitled  to  an  ac- 
count, shall  come  in  and  controvert  it;  it  must  be  sworn  to,  and  is 
subject  to  investigation;  when  the  proceedings  shall  be  the  same  as 
in  the  case  cf  an  executor(w). 

Thus  it  appears  that  the  stat.  1  Jac.  2.  c.  17 (to),  which  provides 
that  no  administrator  shall  be  cited  according  to  the  statute  of  dis- 
tributions to  render  an  account  of  the  personal  estate  of  his  intestate 
otherwise  tlian  by  inventory,  unless  at  the  instance  or  prosecution 
of  some  person  in  behalf  of  a  minor,  or  having  a  demand  out  of  such 
personal  estate,  as  a  creditor,  or  next  of  kin,  nor  be  compellable  to 
account  before  the  ordinary;  had,  in  truth,  no  operation,  as  such  was 
the  law  before(a.'). 

[494]  All  the  legatees,  or  parties  in  distribution,  are  to  be  cited 
to  appear  at  the  making  of  the  account;  for  it  shall  not  be  conclu- 
sive on  such  as  shall  be  absent,  and  have  not  been  cited (y).  An 
executor  or  administrator,  therefore,  when  he  is  called  upon  by  any 
one  party  to  account,  should  cite  the  legatees,  or  next  of  kin  in  spe- 
cial,andall  others  in  general,  having,  or  pretending  to  have, an  interest, 
to  be  present,  if  they  think  fit,  at  the  passing  of  the  same;  and  then, 
on  their  appearance,  or  contumacy  in  not  appearing,  the  judge  shall 
proceed(2'). 

Although  the  spiritual  court  have,  as  incident  to  the  jurisdiction 
of  wills,  the  jurisdiction  also  of  legacies;  yet,  if  a  temporal  matter 
be  pleaded  in  bar  of  an  ecclesiastical  claim,  they  must  proceed  ac- 

(?•)  4  Burn.  Eccl.  L.  427.  Ought.          (ib)  Vid.  4  Burn.  Eccl,  L.  426. 

347, 348.  (x)  Archbp.  of  Canterbury  v.  Wills, 

(s)  4  Burn.  Eccl.  L.  427.  Ought.      Salk.  315,  316. 

34G.  (.V)  4  Burn.  Eccl.  L.  426.     Swinb. 

(/)  4  Burn.  Eccl.  L.  427.  Ought,      p.  6,  s.  20. 

347.  {=)  4  Burn.  Eccl.  L.  426.     Ought. 

(u)  Archbp.  of  Canterbury  v.  Wills,      354,  355,  356. 
1  Salk.  315,316. 


CHAP.  X.]  IN  THE  ECCLESIASTICAL  COURT.  494 

cording  to  the  common  lavv(«).  Therefore,  if  payment  be  pleaded 
in  bar  of  a  legacy,  and  there  be  but  one  witness,  whom  the  ecclesi- 
astical court  will  not  admit,  because  their  law  requires  two  witnesses, 
a  prohibition  shall  issue(6).  But  it  is  not  a  sufficient  ground  for  a 
prohibition  to  suggest,  that  the  plaintiff  had  onl}^  one  witness  to  prove 
the  fact,  unless  the  party  allege  he  offered  such  proof,  and  it  was 
refused  for  insufficiency(c). 

If  the  spiritual  court  shall  attempt  a  distribution  contrary  to  the 
rules  of  the  common  law,  it  shall  be  prevented  by  a  pi'ohibition,  be- 
cause it  is  restricted  by  the  statute  of  distribution  to  those  rules(^). 

[495]  After  the  investigation  of  the  account,  if  the  ordinary  find 
it  true  and  perfect,  he  shall  pronounce  for  its  validity.  And  in  case 
all  parties  interested  as  above-mentioned  have  been  cited,  such  sen- 
tence shall  be  final,  and  the  executor  or  administrator  shall  be  subject 
to  no  farther  suit(e). 

In  case  there  shall  appear  assets  for  the  entire,  or  partial  payment 
of  the  legacy,  or  for  a  distribution,  the  same  shall  be  decreed  accord- 
ingly. 

An  executor  or  administrator  is  also  bound  to  exhibit  an  account 
upon  oath,  at  the  promotion  of  a  creditor;  but  a  creditor  is  not  per- 
mitted to  call  for  vouchers,  nor  to  offer  any  objections  to  the  account; 
in  respect  to  him  the  oath  of  the  party  is  at  once  conclusive:  for  such 
litigation  would  be  altogether  fruitless,  since  the  spiritual  court  has 
no  authority- to  award  the  payment  of  a  debt(/). 

The  object  of  a  creditor  in  suing  for  an  account  in  the  spiritual 
court  is  to  gain  some  insight  into  the  state  of  the  fund,  previously 
to  his  proceeding  in  an  action  at  common  law;  but  a  bill  in  equity 
for  a  discovery  of  the  assets  is  the  more  usual,  as  it  is  the  more  effect- 
ual remedy(^). 

Yet  a  creditor,  as  well  as  the  next  of  kin,  has  a  right  ex  debito 
[496]  justitix,  to  an  assignment  by  the  ordinary  of  the  administra- 
tion bond,  and  to  sue  in  the  name  of  the  ordinary,  as  well  the  sure- 
ties as  the  principal,  showing  for  breach  the  administrator's  not  ex- 
hibiting a  true  inventory,  or  accoant(A).(l)     But  a  creditor  has  no 

(a)  4  Bac.  Abr.  447.     1  Roll.  Abr.  Davis,  1  P.  Wms.  47.  49. 

298,  299.    Hob.  12.    12  Co.  65.    Het-  (c)  Carth.  143,  144. 

ley,  87.     2  Inst.  608.     Sid.  161.  {d)    Blackborough  v.  Davis,  1  P. 

(Jb)  Bagnall  v.  Stokes,  Cro.  Eliz.  88.  Wms.  49. 

666.     Shatter  v.  Friend,  Show,  158.  (e)  4  Burn.  Eccl.  L.  428.     Swinb. 

173.     Richardson  v.  Disborow,  Ventr.  p.  6,  s.  21. 

291.     Shatter  v.  Friend,  3  Mod.  283.  (/)  Vid.  Noy.  78. 

Breedon  v.  Gill,    1    Ld.    Raym.   220.  (^)  Vid.  Supr.  479.  489,  490. 

Cooke  v.  Licence,   346.     Startup  v.  (A)  Greerside  v.  Benson,  3  Atk.  248. 

Dodderidge,  2  Ld.  Raym.  1161.  1172.  Archljp.    of    Canterbury    v.    House, 

1211.     Shatter  v.  Friend,  2  Salk.  547.  Cowp.   140.     Vid.  2  Fonbl.  414,  2d 

S.  C.  Carth.  142.     Blackborough  v.  edit,  note  (d). 


(I)  The  presumption  of  satisfaction  wliicli  arises  as  to  a  bond,  contlitioned  for  llic  pay- 
ment of  money,  after  llie  lapse  of  twenty  years,  is  equally  applicable  to  an  administration 
bond.    Jl/'C'/ean  v.  Finley,  '2  Penns.  Rep.  97. 


496  OF  REMEDIES,  &IC.  [bOOK  111. 

right  in  such  case  to  assign  for  breach  the  nonpayment  of  his  debt, 
or  a  devastavit,  for  the  words  of  the  condition,  "he  is  well  and 
truly  to  administer,"  are  construed  to  apply  merely  to  the  bringing 
in  of  a  true  inventory,  and  account,  and  not  the  payment  of  the  in- 
testate's debts(/). 

An  executor  or  administrator  shall  be  allowed  in  the  spiritual  court 
all  his  reasonable  expenses,  the  rule  in  respecf  to  which  is,  that  he 
shall  receive  no  profit,  nor  incur  any  loss(^).  A  party,  having  an 
interest;  who  prays  an  account,  shall  not  be  condemned  to  costs, 
unless  he  make  objections  to  it,  which  he  fails  to  substantiate(/). 

A  legacy  may  be  recovered  in  the  spiritual  court  against  an  execu- 
tor of  his  own  wrong(wi). 

Legatees  may  file  a  bill  in  chancery  for  an  account  against  the  ex- 
ecutor, and  at  the  same  time,  call  upon  him  in  the  prerogative  court 
to  exhibit  an  inventory(?z). 

[497]  So  where  a  suit  is  pending  in  the  ecclesiastical  court  in  re- 
gard to  the  probate  of  a  will,  or  right  of  administration,  a  bill  in 
chancery  will  lie  by  a  party  interested  for  an  account  of  the  personal 
estate,  on  the  ground,  that  the  ecclesiastical  court  has  no  means  of 
securing  the  effects  in  the  interim(o).  And  the  court  will  protect 
the  property  by  appointing  a  receiver(^). 

The  ecclesiastical  court  cannot  entertain  a  suit  for  proctors'  fees, 
since  they  are  a  temporal  duty,  for  which  an  action  may  be  main- 
tained in  the  temporal  courts((2). 

(j)4Burn.Eccl.  L.428.430.  Lutw.  49.     Phipps  v.  Steward,  1  Atk.  285. 

882.     Archbp.  of  Canterbury  v.  Wills,  2  I3ro.  P.  C.  47G.     Morgan  v.  Harris, 

1  Salk.  315,  316.     Com.  Dig.  Admon.  2  Bro.  Ch.  Rep.  121. 

C.  3.  {p)  Atkinson  v.  Henshaw,  2  Ves. 

{k)  4  Burn.  Eccl.  L.  428.  Lind.  178.  and  Bea.  85.     Ball  v,  Oliver,  ib.  96. 

(/)  4  Burn.  Eccl.  L.428.    Floy.  38.  {q)  2  Burn.  Eccl.  L.  239.     Cora. 

(m)  4  Bac.  Abr.  448.     1  Roll.  Abr.  Dig.  Prohibition  (F.  5.)     Pollard  v. 

919.  Gerrard,  Ld.  Raym.  703.      S.   C.  1 

(n)llVin.  Abr.  427.   3  Chan.Rep.  Salk.  333.     Horton  v.  Wilson,  1  Mod. 

72.  167.     Johnson  v.  Lee,   5  Mod.  238. 

(o)  Wright  V.  Bluck,  1  Vern.  106.  Skin.  589.   Bunb.  70.   Pitts  v.  Evans, 

Dulwich  College  v.  Johnson,  2  Vern.  2  Stra.  1108.     Dougl.  629. 


APPENDIX 


OF 


STAMP   DUTIES. 


By  the  Statute  55  Geo.  3.  c.  184.  the  Stamp  Duties  imposed  by  the  48.  Geo.  3.  c. 
149.  the  a  Geo.  3.  c.  98.  and  the  45  Geo.  3.  c.  28.  are  repealed,  and  the  follow- 
ing Stamp  Duties  are  Imposed.- 

PROBATE  of  a  Will,  and  Letters  of  Administration  with  a  Will  Dut)'. 

annexed,  to  be  granted  in  England:  ■  

CONFIRMATION  ofany  Testament  testamentary,  or  Eik  thereto,  L.  s.  d. 
to  be  expeded  in  any  Commissary  Court  in  Scotland,  where  the 
Deceased  shall  have  died  before  or  upon  the  10th  Day  of  Oc- 
tober 1808,  and  subsequent  to  the  10th  Day  of  October,  1804; 
INVENTORY  to  be  exhibited  and  recorded  in  any  Commissary 
Court  in  Scotland,  of  the  Estate  and  Effects  ofany  Person  de- 
ceased, who  shall  have  died  after  the  10th  Day  of  October, 
1808,  and  have  left  any  Testament  or  testamentary  Disposi- 
tion of  his  or  her  Personal  or  Moveable  Estate  and  Effects,  or 
any  Part  thereof; 

Where  the  Estate  and  Effects  for  or  in  respect  of  which  such 
Probate,  Letters  of  Administration,  Confirmation  or  Eik  re- 
spectively, shall  be  granted  or  expeded,  or  whereof  such  in- 
ventory shall  be  exhibited  and  recorded,  exclusive  of  what 
the  Deceased  shall  have  been  possessed  of  or  entitled  to  as  a 
Trustee  for  any  other  Person  or  Persons,  and  not  beneficially, 
shall  be  above  the  value  of  20/.  and  under  the  value  of 
100/.,  -  -  •-  -  -  - 

of  the  value  of  100/.  and  under  the  value  of  200/.  -  2    .0    0 

of  the  value  of  200/.  and  under  the  value  of  300/.  -  5     0     0 

of  the  value  of  300/.  and  under  the  value  of  450/.  -  8     0     0 

of  the  value  of  450/.  and  under  the  value  of  GOO/.  -  II     0     0 

of  the  value  of  000/.  and  under  the  value  of  800/.  -  15     0     0 

of  the  value  of  800/.  and  under  the  value  of  1000/.        -  22     0    0 

of  the  value  of  1,000/.  and  under  the  value  of  1,500/.    -  30     0     0 

of  the  value  of  1,500/.  and  under  the  value  of  2,000/.    -  40    0     0 

of  the  value  of  2,000/.  and  under  the  value  of  3,000/,   -  50     0     0 

A 


0  10     0 


498  APPENDIX. 

INYENTORY— continued.  Duty. 


L.  s,  d. 

of  the  value  of  3,000/.  and  under  the  value  of  4,000/.    -  GO  0  0 

of  the  value  of  4,000/.  and  under  the  value  of  5,000/.    -  80  0  0 

of  the  value  of  5,000/.  and  under  the  value  of  6,000/.    -  100  0  0 

[499]       of  the  value  of  6,000/.  and  under  the  value  of  7,000/.    -  120  0  0 

of  the  value  of  7,000/.  and  under  the  value  of  8,000/.    -  140  0  0 

of  the  value  of  8,000/.  and  under  the  value  of  9,000/.   -  160  0  0 

of  the  value  of  9,000/.  and  under  the  value  of  10,000/.  -  180  0  0 

•  ■  of  the  value  of  10,000/.  and  under  the  value  of  12,000/.  200  0  0 

of  the  value  of  12,000/.  and  under  the  value  of  14,000/.  220  0  0 

of  the  value  of  14,000/.  and  under  the  value  of  16,000/.  250  0  0 

of  the  value  of  16,000/.  and  under  the  value  of  18,000/.  280  0  0 

.  of  the  value  of  18,000/.  and  under  the  value  of  20,000/.  310  0  0 

of  the  value  of  20,000/.  and  under  the  value  of  25,000/.  350  0  0 

of  the  value  of  25,000/.  and  under  the  value  of  30,000/.  400  0  0 

of  the  value  of  30,000/.  and  under  the  value  of  35,000/.  450  0  0 

of  the  value  of  35,000/.  and  under  the  value  of  40,000/.  525  0  0 

of  the  value  of  40,000/.  and  under  the  value' of  45,000/.  600  0  0 

ofthe  value  of  45,000/.  and  under  the  value  of  50,000/.  675  0  0 

of  the  value  of  50,000/.  and  under  the  value  of  60,000/.  750  0  0 

of  the  value  of  60,000/.  and  under  the  value  of  70,000/.  900  0  0 

of  the  value  of  70,000/.  and  under  the  value  of  80,000/.  1,050  0  0 

[500]       ofthe  value  of  80,000/.  and  under  the  value  of  90,000/.  1,200  0  0 
of   the    value    of   90,000/.    and    under    the  value   of 

100,000/.          -...-.  1,350  0  0 
of    the  value    of    100,000/.  and  under  the  value   of 

120,000/.           .-..-.  1,500  0  0 
of    the  value  of   120,000/.    and  under  the  value   of 

140,000/.          ..-..-  1,800  0  0 
of  the  value    of   140,000/.   and   under   the  value   of 

160,000/.          -..--.  2,100  0  0 
of  the   value   of   160,000/.   and   under  the  value   of 

180,000/.          -.--..  2,400  0  0 
of  the  value   of    180,000/.  and    under    the    value   of 

200,000/.          -...-.  2,700  0  0 
of   the  value   of   200,000/.   and   under  the  value   of 

250,000/.          .-...-  3,000  0  0 
of   the  value  of  250,000/.  and    under    the  value   of 

300,000/.          -             -            -             -             -           -  3,750  0  0 

of    the    value  of   300,000/.  and   under  the   value   of 

350,000/.           ......  4,500  0  0 

of   the  value  of   350,000/.  and   under  the   value    of 

400,000/.         ......  5,250  0  0 

of    the   value    of    400,000/.   and  under    the  value  of 

500,000/.          ......  6,000  0  0 

of  the   value   of   500,000/.   and    under  the  value   of 

600,000/.          ...                          .          .  7,500  0  0 


APPENDIX. 


500 


IN  VE  NTORY—co7itinued. 


of   the  value   of    600,000/.   and   under  the 

700,000/.  .... 

of   the   value   of  700,000/.   and  under 
800,000/.  .... 

of   the   value  of   800,000/.    and   under 

900,000/. 
of    the  value    of   900,000/.   and   under 
1,000,000/.       .... 
of  the  value  of  1,000,000/.  and  upwards  - 
[501]       LETTERS  OF  ADMINISTRATION,  without  a  Will 

annexed,  to  be  granted  in  England  : 
CONFIRMATION  of  any  TESTAMENT  dative,  to  be  expe- 
ded  in  any  Commissary  Court  in  Scotland,  where  the 
Deceased  shall  have  died  before  or  upon  the  10th  Day 
of  October  1808,  and  subsequent  to  the  10th  Day  of  Oc- 
tober 1804; 
INVENTORY  to  be  exhibited  and  recorded  in  any  Commissary 
Court  in  Scotland,  of  the  Estate  and  Effects  of  any  Person 
deceased  who  shall  have  died  after  the  10th  Day  of  October 
1808,  without  leaving  any  Testament  or  testamentary  Dispo- 
sition of  his  or  her  Personal  or  Moveable  Estate  or  Effects, 
or  any- part  thereof; 

Where  the  Estate  and  Effects  for  or  in  respect  of  which 
such  Letters  of  Administration  or  Confirmation  respec- 
tively shall  be  granted  or  expeded,  or  whereof  such  In- 
ventory shall  be  exhibited  and  recorded,  exclusive  of 
what  the  Deceased  shall  have  been  possessed  of  or  enti- 
tled to  as  a  Trustee  for  any  other  Person  or  Persons,  and- 
not  beneficially,  shall  be 

above  the  value  of  20/.  and  under  the  value  of  50/.    - 
of  the  value  of  50/.  and  under  the  value  of  100/. 
of  the  value  of  100/.  and  under  the  value  of  200/. 
of  the  value  of  200/.  and  under  the  value  of  300/. 
of  the  value  of  300/.  and  under  the  value  of  450/. 
[502]  of  the  value  of  450/.  and  under  the  value,  of  600/. 

of  the  value  of  600/.  and  under  the  value  of  800/. 
of  the  value  of  800/.  and  under  the  value  of  1,000/.  - 
of  the  value  of  1,000/.  and  under  the  value  of  1,500/. 
of  the  value  of  1,500/.  and  under  the  value  of  2,000/. 
of  the  value  of  2,000/.  and  under  the  value  of  3,000/. 
•  of  the  value  of  3,000/.  and  under  the  value  of  4,000/. 
of  the  value  of  5,000/.  and  under  the  value  of  5,000/. 
of  the  value  of  5,000/.  and  under  the  value  of  6,000/. 
of  the  value  of  6,000/.  and  under  the  value  of  7,000/. 
of  the  value  of  7,000/.  and  under  the  value  of  8,000/. 


Duty. 


L. 

s. 

d. 

the    value 

of 

. 

-     9,000 

0 

0 

the  value 

of 

- 

-    10,500 

0 

0 

the  value 

of 

- 

-    12,000 

0 

0 

the  value 

of 

- 

-    18,500 

0 

0 

- 

-    15,000 

0 

0 

0 

10 

0 

1 

0 

0 

3 

0 

0 

8 

0 

0 

11 

0 

0 

15 

0 

0 

22. 

0 

0 

30 

0 

0 

45 

0 

0 

60 

0 

0 

75 

0 

0 

90 

0 

0 

120 

0 

0 

150 

0 

0 

180 

0 

0 

210 

0 

0 

502  APPENDIX. 

INVENTORY— COTi^muerf.  Duty. 


L,     s.     d. 

of  the  value  of  8,000/.  and  under  the  value  of  9,000/.  240     0     0 

of  the  value  of  9,000/.  and  under  the  value  of  10,000/.  270     0     0 

of  the   value  of  10,000/.   and  under   the   value   of 

12,000/.  -             -             -             -             -         -         300     0     0 

of  the   value  of  12,000/.   and   under   the  value  of 

14,000/. 330    0    0 

of  the   value  of  14,000/.   and   under  the   value  of 

1G,000/.  -            -            -            -            -        -        375     0    0 

of  the   value  of  10,000/.   and   under  the   value   of 

18,000/.  -             -             -             -             -         -         420     0     0 

of  the  value  of  18,000/.   and   under   the  value  of 

20,000/. 4G5     0    0 

[503]           of  the   value  of  20,000/.   and   under   the   value  of 

25,000/.  -  '          -             -             -             -         -         525     0     0 

of  the   value  of  25,000/.   and   under   the   value  of 

30,000/.  -            -            .            -            -        -        COO     0     0 

of  the   value  of  30,000/.   and    under  the   value  of 

35,000/. 675     0    0 

of  the   value  of  35,000/.   and  under  the  value  of 

40,000/. 785     0     0 

of  the   value  of  40,000/.   and  under  the   value   of 

45,000/.  -             -             -             -             -         -         900     0     0 

of  the   value  of  45,000/.   and   under   the  value   of 

50,000/. 1,010     0     0 

of  the   value  of  50,000/.   and   under   the   value   of 

60,000/.  -             -             -             -             -         -      1,125     0     0 

of  the   value  of  60,000/.    and   under   the   value  of 

70,000/. 1,350     0     0 

of  the   value  of  70,000/.   and  under  t.ie  value  of 

80,000/. 1,575     0     0 

of  the   value  of  80,000/.   and  under   the  value  of 

90,000/. 1,800     0     0 

of  the  value  of  90,000/.   and   under  the  value  of 

100,000/.  .--.--      2,025     0     0 

of  the  value  of  100,000/.  and  under  the  value  of 

120,000/.  -             -             .             .             -         -      2,250     0     0 

of  the  value  of  120,000/.  and   under  the  value  of 

140,000/. 2,700     0     0 

of  the  value  of  140,000/.  and  under   the  value  of 

160,000/.        - 3,150     0     0 

of  the   value   of  160,000/.   and  under  the  value  of 

180,000/. 3,600     0     0 

of  the  value  of  180,000/.   and  under  the  value  of 

200,000/. 4,050     0     0 

of  the   value  of  200,000/.   and  under  the  value  of 

250,000/.  -             ...             .             .         -     4,500     0     0 


APPENDIX.  503 

INVENTORY— continued.  Duty. 

L.      s.     d. 

of  the  value  of  250,000/.    and  under  the  value  of 

300,000/.  ---..-      5,625     0     0 

[504]           of  the  value  of  300,000/.   and  under  the  value  of 

350,000/. 6,750     0     0 

of  the  value  of  350,000/.   and  under  the  value  of 

400,000/.  --..--      7,875     0     0 

of  the  value  of  400,000/.   and  under  the  value  of 

500,000/.  .--..-      9,000     0     0 

of  the  value  of  500,000/.   and  under  the  value  of    .. 

600,000/. 11,250     0     0 

of  the  value  of  600,000/.   and  under  the  value  of 

700,000/.  .-.-.-    13,500     0     0 

of  the  value  of  700,000/.   and  under  the  value  of 

800,000/.  .-.--.    15,750     0     0 

of  the  value  of  800,000/.   and  under  the  value  of 

900,000/.        - 18,000     0     0 

of  the  value  of  900,000/.   and  under  the  value  of 

1,000,000/.  -             -             -             -         -        -     20,250     0     0 

ofthe  value  of  1,000,000/.  and  upwards  -        -    22,500     0     0 

.  :  Exemptim  from  all  Stamp  Duties. 

Probate  of  Will,  Letters  of  Administration,  Confirmation  of 
Testament,  and  Eik  thereto,  and  Inventory  of  the  effects 
of  any  Common  Seaman,  Marine,  or  Soldier,  who  shall 
be  slain  or  die  in  the  Service  of  His  Majesty,  His  Heirs 
or  Successors: 

Additional  Inventory  to  be  exliibited  and  recorded  in  any 
Commissary  Court  in  Scotland;  where  the  same  shall 
not  be  liable  to  a  Duty  of  greater  Amount  than  the  Duty 
already  paid  upon  any  former  Inventory  exhibited,  and 
recorded  of  the  Estate  and  Effects  of  the  same  Person. 

[505]  LEGACIES  and  SUCCESSIONS  to  Personal  or  Move- 
able Estate  upon  Intestacy. 

1.  Where  the  Testator,  Testatrix,  or  Intestate  died  lefore  or 
upon  the  5th  Day  of  April,  1805. 

For  every  Legacy,  specific  or  pecuniary,  or  of  any  other 
Description,  of  the  Amount  or  Value  of  20/.  or  upwards, 
given  by  any  Will  or  Testamentary  Instrument  of  any 
Person  who  died  before  or  upon  the  5th  Day  of  April 
1805,  out  of  his  or  her  Personal  or  Moveable  Estate, 
and  which  shall  be  paid,  delivered,  retained,  satisfied 
or  discharged,  after  the  31st  Day  of  August  1815: 

Also  for  the  clear  Residue  (when  devolving  to  one  Per- 
son) and  for  every  SharO'of  the  clear  Residue  (when  de- 


505  APPENDIX. 

LEGACIES  and  SUCCESSIONS— con/mued.  Duty. 


L.      s.      d. 

volving  to  two  or  more  Persons)  of  the  personal  or 
Moveable  Estate  of  any  Person  who  died  before  or  upon 
the  5th  Day  of  April  1805  (after  deducting  Debts, 
Funeral  Expenses,  Legacies,  and  other  Charges  first 
payable  thereout),  whether  the  Title  to  such  Residue, 
or  any  Share  thereof,  shall  accrue  by  virtue  of  any 
Testamentary  Disposition,  or  upon  a  partial  or  total  In- 
testacy; where  such  Residue,  or  Shareof  Residue,  shall 
be  of  the  Amount  or  Value  of  20/.  or  upwards,  and 
where  the  same  shall  be  paid,  delivered,  retained,  satis- 
fied or  discharged,  after  the  Thirty-first  Day  of  August 
1815: 

Where  any  such  Legacy,  or  Residue,  or  Share  of  such  Re- 
[506]       sidue,  shall  have  been  given  or  have  devolved  to  or  for 
the  Benefit  of  a  Brother  or  Sister  of  the  Deceased,  or  any 
Descendant  of  a  Brother  or  Sister  of  the  Deceased ;  a 
Duty  at  and  after  the  Rate  of  Two  Pounds  and  Ten  per  Cent. 

Shillings  j5er  Centum,  on  the  amount  or  value  thereof  2     10     0 

Where  any  such  Legacy,  or  Residue,  or  Share  of  such  Re-? 
sidue,  shall  have  been  given,  or  have  devolved,  to  or  for 
the  Benefit  of  a  Brother  or  Sister  of  the  Father  or  Mother 
of  the  Deceased,  or  any  Descendant  of  a  Brother  or  Sis- 
ter of  the  Father  or  Mother  of  the  Deceased  ;  a  Duty  at 
and  after  the  Rate  of  Four  Pounds  per  Centum,  on  the  per  Cent. 

amount  or  value  thereof  -  -  -  -  4     0     0 

Where  any  such  Legacy,  or  Residue,  or  Share  of  such 
Residue,  shall  have  been  given,  or  have  devolved,  to  or 
for  the  Benefit  of  a  Brother  or  Sister  of  a  Grandfather  or 
Grandmother  of  the  deceased,  or  any  Descendant  of  a 
Brother  or  Sister  of  a  Grandfather  or  Grandmother  of 
the  Deceased ;   a  Duty  at  and  after  the  rate  of  Five  per  Cent. 

pounds  per  Centum,  on  the  amount  or  value  thereof  5     0     0 

And  where  any  such  Legacy,  or  Residue  or  Share  of  such 
Residue,  shall  have  been  given,  or  have  devolved,  to  or 
for  the  Benefit  of  any  Person  in  any  other  Degree  of 
Collateral  Consanguinity  to  the  Deceased  than  is  above 
described,  or  to  or  for  the  Benefit  of  any  Stranger  in  ' 
blood  to  the  Deceased ;  a  Duty  at  and  after  the  Rate  of 
Eight  Pounds  per    Centum   on   the  amount  or   value  per  Cent. 

thereof  -  -  -        .    -  -  -  8     0    0 

[507]       11.   Where  the  Testator,  Testatrix,  or  Intestate,  shall  have 

died  after  the  bthday  of  Jlpril  1805. 

For  every  Legacy,  specific  or  pecuniary,  or  of  any  other 

Description,  of  the  amount  or  value  of  30/.  or  upwards, 

given  by  any  W'ill  or  Testamentary  Instrument,  of  any 


APPENDIX.  507 

LEGACIES  and  SUCCESSIONS— cow^mwec/.  Duty. 


L.      s.      d. 

Person,  who  shall  have  died  after  the  5th  Day  of  April 
1805,  either  out  of  his  or  her  Personal  or  Moveable  Es- 
tate, or  out  of  or  charged  upon  his  or  her  Real  or  Heri- 
table Estate,  or  out  of  any  Moneys  to  arise  by  the  Sale, 
Mortgage  or  other  Disposition  of  his  or  her  Real  or 
Heritable  Estate,  or  any  Part  thereof,  and  which  shall 
be  paid,  delivered,  retained,  satisfied  or  discharged  after 
the  31st  Day  of  August  1815: 

Also,  for  the  clear  Residue  (when  devolving  to  one 
Person)  and  for  every  Share  of  the  clear  Residue 
(when  devolving  to  two  or  more  Persons)  of  the  Per- 
sonal or  Moveable  Estate  of  any  Person  who  shall  have 
died  after  the  5th  Day  of  April  1805,  (after  deducring 
Debts,  Funeral  Expences,  Legacies  and  other  Charges 
first  payable  thereout),  whether  the  Title  to  such  Resi- 
due, or  any  share  thereof,  shall  accrue  by  virtue  of  any 
Testamentary  Disposition,  or  upon  a  partial  or  total  In- 
testacy ;  where  such  Residue,  or  share  of  Residue,  shall 
[508]  be  of  the  amount  or  value  of  20/.  or  upwards,  and  where 
the  same  shall  be  paid,  delivered,  retained,  satisfied  or 
discharged  after  the  31st  day  of  August  1815: 

And  also  for  the  clear  Residue  (when  given  to  one  Per- 
son) and  for  every  Share  of  the  clear  Residue  (when 
given  to  two  or  more  Persons)  of  the  Moneys  to  arise 
from  the  Sale,  Mortgage  or  other  Disposition  of  any 
Real  or  Heritable  Estate,  directed  to  be  sold,  mortgaged, 
or  otherwise  disposed  of,  by  any  Will  or  Testamentary 
Instrument,  of  any  Person,  who  shall  have  died  after 
the  5th  Day  of  April  1805  (after  deducting  Debts,  Fu- 
neral Expences,  Legacies  and  other  Charges  first 
made  payable  thereout,  if  any)  where  such  Residue, 
or  Share  of  Residue  shall  amount  to  20/.  or  upwards, 
and  where  the  same  shall  be  pilid,  retained,  or  dis- 
charged after  the  21st  Day  of  August  1815: 

Where  any  such  Legacy,  or  Residue,  or  any  Share  of 
such  Residue,  shall  have  been  given,  or  have  devolved,  to 
or  for  the  Benefit  of  a  Child  of  the  Deceased,  or  any 
Descendant  of  a  Child  of  the  Deceased,  or  to  or  for  the 
Benefit  of  the  Father  or  Mother,  or  any  lineal  Ancestor 
of  the  Deceased  ;  a  Duty  at  and  after  the  Rate  of  One  per  Cent. 

Pound />er  C'e«/j<m  on  the  amount  or  value  thereof        -  10     0 

Where  any  such  Legacy^  or  Residue,  or  any  Share  of 
such  Residue,  shall  have  been  given,  or  have  devolved, 
[509]      to  or  for  the  Benefit  of  a  Brother  or  Sister  of  the  De- 
ceased,, or  any  Descendant  of  a  Brother  or  Sister  of  tha 


509  APPENDIX. 

LEGACIES  and  SUCCESSIONS— con/muerf.  Duty. 

L.      s.     d. 

Deceased  ;  a  Duty  at  and  after  the  Rate  of  Three  Pounds  per  Cent. 

per  Centum  on  the  amount  or  value  thereof     -  -  3     0     0. 

Where  any  such  Legacy,  or  Residue,  or  any  Share  of 
such  Residue,  shall  have  been  given,  or  have  devolved, 
to  or  for  the  Benefit  of  a  Brother  or  Sister  of  the  Father 
or  Mother  of  the  Deceased,  or  any  Descendant  of  a 
Brother  or  Sister  of  the  Father  or  Mother  of  the  De- 
ceased; a  Duty  at  and  after  the  rate  of  Five  Pounds  per  Cent, 
per  Centum  on  the  amount  or  value  thereof       -            -  5    0     0 

Where  any  such  Legacy,  or  Residue,  or  any  Share  of 
such  Residue,  shall  have  been  given,  or  have  devolved, 
to  or  for  the  Benefit  of  a  Brother  or  Sister  of  a  Grand- 
father or  Grandmother  of  the  Deceased,  or  any  Descend- 
ant of  a  Brother  or  Sister  of  a  Grandfather  or  Grand- 
mother of  the  Deceased  ;  a  Duty  at  and  after  the  Rate 
of  Six  Pounds  per  Centum  on  the  amount  or  value  per  Cent. 

thereof  -  -  -  -  -  -  GOO 

And  where  any  such  Legacy,  or  Residue,  or  any  Share  of 
such  Residue,  shall  have  been  given,  or  have  devolved, 
to  or  for  the  Benefit  of  any  Person,  in  any  other  degree 
of  Collateral   Consanguinity  to  the  Deceased  than  is 
above  described,  or  to  or  for  the  Benefit  of  any  Stranger 
in  blood  to  the  Deceased ;  a  Duty  at  and  after  the  Rate 
of  Ten  Pounds  per  Centum  on  the  amount  or  value  pef  Cent. 

thereof  -  -  -  -  -  -  10     0     0 

[510]  And  all  gifts  of  Annuities,  or  by  way  of  Annuity,  or  of 
any  other  partial  Benefit  or  Interest,  out  of  any  such 
Estate  or  Effects  as  aforesaid,  shall  be  deemed  Legacies 
within  the" Intent  and  Meaning  of  this  Schedule. 

And  where  any  Legatee  shall  take  two  or  more  distinct 
Legacies  or  Benefits  under  any  Will  or  Testamentary 
Instrument,  which  shall  together  be  of  the  amount  or 
value  of  20/.  each,  shall  be  charged  with  Duty,  though 
each  or  either  may  be  separately  under  that  amount  of 
value. 

Exemptions.  ■ 
Legacies,  and  Residues,  or  Shares  of  Residue,  of  any 
such  Estate  or  Effects  as  aforesaid,  giving  or  devolv- 
ing to  or  for  the  Benefit  of  the  Husband  or  Wife  of  the 
Deceased,  or  to  or  for  the  Benefit  of  any  of  the  Royal 
Family. 
And  all  Legacies  which  were  exempted  from  Duty  by 
the  Act  passed  in  the  39th  Year  of  His  Majesty's 
Reign,  c.  73,  for  exempting  certain  specific  Legacies 
given  to  Bodies  Corporate,  or  other  Public  Bodies,  from 
the  Payment  of  Duty. 


APPENDIX. 


510 


By  Sect,  2,  It  is  enacted,  That  there  shall  be  raised,  levied,^and  paid  unto 
and  for  the  Use  of  His  Majesty,  His  Heirs  and  Successors,  in'and  throughout 
the  whole  of  Great  Britain,  for  and  in  respect  of  the  several  Instruments,  Mat- 
ters and  Things,  mentioned  [511]  and  described  in  the  Schedule  hereunto  an- 
nexed (except  those  standing  under  the  Head  of  Exemptions)  or  for  or  in  respect 
of  the  Vellum,  Parchment,  or  Paper,  upon  which  such  Instruments,  Matters  and 
Things,  or  any  of  them  shall  be  written  or  printed,  the  several  Duties  or  Sums 
of  Money  set  down  in  Figures  against  the  same  respectively,  or  otherwise  spe- 
cified and  set  forth  in  the  same  Schedule;  and  that  the  yearly  Per-centage  Duty 
on  Insurances  from  Loss  by  Fire,  therein  mentioned,  shall  commence  and  take 
place  from  and  after  the  Twenty-eighth  Day  of  September,  one  thousand  eight 
hundred  and  fifteen;  and  that  all  the  other  Duties  therein  mentioned  shall  com- 
mence and  take  place  from  and  after  the  Thirty-first  day  of  August,  One  thou- 
sand eight  hundred  and  fifteen;  and  that  the  said  Schedule  and  all  the  Provi- 
sions, Regulations,  and  Directions  therein  contained  with  respect  to  the  said 
•Duties,  and  the  Instruments,  Matters,  and  Things  charged  therewith,  shall  be 
deemed  and  taken  to  be  Part  of  this  Act,  and  shall  be  read  and  construed  as  if 
the  same  had  been  inserted  herein'at  this  Place,  and  shall  be  applied,  observed, 
and  put  into  Execution  accordingly. 

By  Sect.  37.  It  is  enacted.  That  from  and  after  the  thirty-first  Day  of  August 
One  thousand  eight  hundred  and  fifteen,  if  any  person  shall  take  possession  of, 
and  in  any  Manner  administer,  any  Part  of  the  Personal  Estate  and  Effects  of 
any  person  deceased,  without  obtaining  Probate  of  the  Will  or  Letters  of  Ad- 
ministration of  the  Estate  and  Effects  of  the  Deceased,  within  Six  Calendar 
Months  after  his  or  her  decease,  or  within  Two  Calendar  Months  after  the  ter- 
mination of  any  Suit  or  Dispute  respecting  the  Will  or  the  Right  to  Letters  of 
Administration,  if  there  shall  be  any  such  which  shall  not  be  ended  within  Four 
Calendar  Months  after  the  Death  of  the  Deceased ;  every  person  so  offending 
shall  forfeit  the  Sum  of  One  Hundred  Pounds,  and  also  a  further  Sum,  at  and 
after  the  Rate  of  Ten  Pounds  per  Centum  on  the  Amount  of  the  Stamp  Duty 
payable  on  the  Probate  of  the  Will  or  Letters  of  Administration  of  the  Estate 
and  Effects  of  the  Deceased. 

[512]  Sect.  38.  That  from  and  after  the  Expiration  of  Three  Calendar  Months 
from  the  passing  of  this  Act,  no  Ecclesiastical  Court  or  Person  shall  grant  Pro- 
bate of  the  Win  or  Letters  of  Administration  of  the  Estate  and  Effects  of  any 
person  deceased,  without  first  requiring  and  receiving  from  the  person  or  persons 
applying  for  the  Probate  or  Letters  of  Administration,  or  from  some  other  com- 
petent person  or  persons,  an  affidavit,  or  solemn  affirmation  in  the  case  of  Quakers, 
that  the  Estate  and  Effects  of  the  Deceased,  for  or  in  respect  of  which  the  Pro- 
bate or  Letters  of  Administration  is  or  are  to  be  granted,  exclusive  of  what  the 
Deceased  shall  have  been  possessed  of  or  entitled  to  as  a  trustee  for  any  other 
person  or  persons,  and  not  beneficially,  but  including  the  leasehold  estates  for 
years  of  the  Deceased,  whether  absolute  or  determinable  on  lives,  if  any,  and 
without  deducting  any  thin^j  on  account  of  the  debts  due  and  owing  from  the 
Deceased,  are  under  the  value  of  a  certain  sum  to  be  therein  specified  to  the  best 
of  the  Deponent's  or  Affirmant's  knowledge,  information,  and  belief,  iif  order 
that  tlie  proper  and  full  Stamp  Duly  may  l)e  paid  on  such  Probate  or  JiCtters  of 
Administration;  which  afllduvit  or  ulfinaation  shall  bu  made  before  the  Surrogate 
B 


512 


APPENDIX. 


or  other  person  who  sliall  administer  the  usual  oath  for  the  due  Administration 
of  the  Estate  and  Effects  of  tlie  Deceased. 

Sect.  39.  That  every  such  affidavit  or  affirmation  shall  be  exempt  from  Stamp 
Duty,  and  shall  be  transmitted  to  the  said  Commissioners  of  Stamps,  together 
with  the  copy  of  the  Will,  or  extract  or  account  of  the  letters  of  administration 
to  which  it  shall  relate,  by  the  Registrar  or  other  officer  of  the  Court,  whose  duty 
it  shall  be  to  transmit  copies  of  Wills,  and  Extracts  or  Accounts  of  Letters  of 
Administration,  to  the  said  Commissioners,  for  the  better  collection  of  the  Duties 
on  Legacies  and  Successions  to  Personal  Estate  upon  Intestacy ;  and  if  any 
Registrar  or  other  Officer  whose  duty  it  shall  be,  shall  neglect  to  transmit  such 
affidavit  or  affirmation  to  the  said  Commissioners  of  Stamps,  as  hereby  directed, 
every  person  so  offending  shall  forfeit  the  sum  of  Fifty  Pounds. 

[513]  Sect.  40.  That  from  and  after  the  passing  of  this  Act,  where  any  per- 
son, on  the  applying  for  the  Probate  of  a  Will  or  Letters  of  Administration,  shall 
have  estimated  the  Estate  and  Effects  of  the  Deceased  to  be  of  greater  value  than 
the  same  shall  have  afterwards  proved  to  be,  and  shall  in  consequence  have  paid 
too  high  a  Stamp  Duty  thereon,  if  such  person  shall  produce  the  Probate  or 
Letters  of  Administration  to  the  said  Commissioners  of  Stamps,  within  Six 
Calendar  Months  after  the  true  value  of  the  Estate  and  Effects  shall  have  been 
ascertained,  and  it  shall  be  discovered  that  too  high  a  Duty  was  first  paid  on  the 
Probate  or  Letters  of  Administration,  and  shall  deliver  to  them  a  particular  In- 
ventory and  Account  and  Valuation  of  the  Estate  and  Effects  of  the  Deceased, 
verified  by  an  affidavit,  or  solemn  affirmation  in  the  case  of  Quakers ;  and  if  it 
should  thereupon  satisfactorily  appear  to  the  said  Commissioners,  that  a  greater 
Stamp  Duty  was  paid  on  the  Probate  or  Letters  of  Administration  than  the  Law 
required,  it  shall  be  lawful  for  the  said  Commissioners  to  cancel  and  expunge 
the  Stamp  on  the  Probate  or  Letters  of  Administration,  and  to  substitute  another 
Stamp  for  denoting  the  Duty  which  ought  to  have  been  paid  thereon,  and  to 
make  an  allowance  for  the  difference  between  them,  as  in  the  cases  of  spoiled 
stamps,  or,  if  the  difference  be  considerable,  to  repay  the  same  in  money,  at  the 
discretion  of  the  said  Commissioners. 

Sect.  41.  That  from  and  after  the  passing  of  this  Act,  where  any  person,  on 
applying  for  the  Probate  of  a  Will  or  Letters  of  Administration,  shall  have  esti- 
mated the  Estate  and  Effects  of  the  Deceased  to  be  of  less  value  than  the 
same  shall  have  afterwards  proved  to  be,  and  shall  in  consequence  have  paid  too 
little  Stamp  Duty  thereon,  it  shall  be  lawful  for  the  said  Commissioners  of 
Stamps,  on  delivery  to  them  of  an  affidavit  or  solemn  affirmation  of  the  value  of 
the  Estate  and  Effects  of  the  Deceased,  to  cause  the  Probate  or  Letters  of  Ad- 
ministration to  be  duly  stamped,  on  payment  of  the  full  Duty  which  ought  to 
have  been  originally  paid  [514]  thereon  in  respect  of  Siich  value,  and  of  the  fur- 
ther sum  or  penalty  payable  by  Law  for  stamping  Deeds  after  the  Execution 
thereof,  without  any  deduction  or  allowance  of  the  Stamp  Duty  originally  paid 
on  such  Probate  or  Letters  of  Administration :  Provided  always,  that  if  the  ap- 
plication shall  be  made  within  Six  Calendar  months  after  the  true  value  of  the 
Estate  and  effects  shall  be  ascertained,  and  it  shall  be  discovered  that  too  little 
Duty  was  at  first  paid  on  the  Probate  or  Letters  of  Administration ;  and  if  it  shall 
appear  by  affidavit  or  solemn  affirmationj  to  the  satisfaction  of  the  said  Commis- 
sioners, that  such  Duty  was  paid  iri  consequence  of  any  mistake  or  misappre- 


APPENDIX.  514 

hension,  or  of  its  not  being  known  at  the  time  that  some  particular  part  of  the 
Estate  and  Effects  belonged  to  the  Deceased,  and  without  any  intention  of  fraud, 
or  to  delay  the  payment  of  the  full  and  proper  Duty,  then  it  shall  be  lawful  for 
the  said  Commissioners  to  remit  the  before-mentioned  penalty,  and  to  cause  the 
Probate  or  Letters  of  Administration  to  be  duly  stamped,  on  payment  only  of 
the  sum  which  shall  be  wanting  to  make  up  the  Duty  which  ought  to  have  been 
at  first  paid  thereon. 

Sect.  42.  That  in  cases  of  Letters  of  Administration  on  which  too  little  Stamp 
Duty  shall  have  been  paid  at  first,  the  said  Commissioners  of  Stamps  shall  not 
cause  the  same  to  be  duly  stamped  in  the  nianner  aforesaid,  until  the  Adminis- 
trator shall  have  given  such  security  to  the  Ecclesiastical  Court  or  Ordinary  by 
whom  the  Letters  of  Administration  shall  have  been  granted,  as  ought  by  law  to 
have  been  given  on  the  granting  thereof,  in  case  the  full  value  of  the  Estate  and 
Eflfects  of  the  Deceased  had  been  then  ascertained,  and  also  that  the  said  Com- 
missioners of  Stamps. shall  yearly  or  oftener,  transmit  an  accountofthe  Probates 
and  Letters  of  Administration,  upon  which  the  Stamps  shall  have  been  rectified 
in  pursuance  of  this  Act,  to  the  several  Ecclesiastical  Courts  by  which  the  same 
shall  have  been  granted,  together  with  the  value  of  the  Estate  and  Effects  of  the 
Deceased,  upon  which  such  rectification  shall  have  proceeded. 

[515]  Sect.  43. ~  That  where  too  little  Duty  shall  have  been  paid  on  any 
Probate  or  Letters  of  Administration,  in  consequence  of  any  mistake  or  misap- 
prehension, or  of  its  not  being  known  at  the  time  that  some  particular  part  of  the 
Estate  and  Eflfects  belonged  to  the  Deceased,  if  any  Executor  or  Administrator 
acting  under  such  Probate  or  Letters  of  Administration  shall  not,  within  six 
calendar  months  after  the  passing  of  this  Act,  or  after  the  discovery  of  the  mis- 
take or  misapprehension,  or  of  any  Estate  or  Effects  not  known  at  the  time  to 
have  belonged  to  the  Deceased,  apply  to  the  said  Commissioners  of  Stamps, 
and  pay  what  shall  be  wanting  to  make  up  the  Duty  which  ought  to  have  been 
paid  at  first  on  such  Probate  or  Letters  of  Administration,  he  or  she  shall  forfeit 
the  sum  of  One  Hundred  Pounds,  and  also  a  further  sum,  at  and  after  the  rate  of 
Ten  Pounds  joer  Cojtum  on  the  amount  of  the  sum  wanting  to  make  up  the  proper 
duty. 

Sect.  44.  That  from  and  after  the  expiration  of  three  calendar  months  from 
the  passing  of  this  Act,  it  shall  not  be  lawful  for  any  Ecclesiastical  Court  or 
Person  to  call  in  and  revoke,  or  to  accept  the  surrender  of  any  Probate  or  Letters 
of  Administration,  on  the  ground  only  of  too  high  or  too  low  a  Stamp  Duty 
having  been  paid  thereon,  as  heretofore  hathbeen  practised  ;  and  if  any  Ecclesi- 
astical Court  or  Person  shall  so  do,  the -Commissioners  of  Stamps  shall  not 
make  any  allowance  whatever  for  the  Stamp  Duty  on  the  Probate  or  Letters  of 
Administration  which  shall  be  so  annulled. 

Sect.  45.  As  it  has  happened  in  the  case  of  Letters  of  Administration  on  which 
the  proper  Stamp  Duty  hatli  not  been  paid  at  first,  that  certain  debts,  chattels, 
real  or  other  eflfects,  due  or  belonging  to  tlie  Deceased,  have  been  found  to  be  of 
such  great  value,  that  the  Administrator  hath  not  been  possessed  of  money  suf- 
ficient either  of  his  own  or  of  the  Deceased  to  pay  the  requisite  Stamp  Duty,  in 
order  to  render  such  Letters  of  Administration  available  fbr  the  recovery  thereof 
by  law:  And  whereas  the  like  [51G]  may  occur  again,  and  it  may  also  happen 
that  Executors  or  Persons  entitled  to  take  out  Letters  of  Administration  may, 
before  obtaining  Probate  of  thn  Will  or  Letters  of  Administration  of  the  Estate 


516  APPENDIX. 

and  Eflccta  of  the  Deceased,  find  some  considerable  part  or  parts  of  the  Estate 
and  Effects  of  the  Deceased  so  circumstanced  as  not  to  be  immediately  got  pos- 
session of,  and  may  not  have  money  sufficient  either  of  their  own  or  of  the  De- 
ceased to  pay  the  Stamp  Duty  on  the  Probate  or  Letters  of  Administration  which 
it  shall  be  necessary  to  obtain ;  it  is  enacted,  that  from  and  after  the  passing  of 
this  act,  it  shall  be  lawful  for  the  said  Commissioners  of  Stamps,  on  satisfac- 
tory proof  of  the  facts  by  affidavit  or'  solemn  allirmation,  in  any  such  case  as 
aforesaid  which  may  appear  to  them  to  require  relief,  to  cause  the  Probate  or 
Letters  of  Administration  to  be  duly  stamped,  for  denoting  the  Duty  payable, 
or  which  ought  originally  to  have  been  paid  thereon,  and  to  give  credit  for  the 
Duty,  either  upon  payment  of  the  before-mentioned  penalty,  or  without,  in  caSes 
of  Probates  or  Letters  of  Administration  already  obtained,  and  upon  which  too 
little  Duty  shall  have  been  paid,  and  either  with  or  without  allowance  of  the 
Stamp  Duty  already  paid  thereon,  as  the  case  may  require,  under  the  provisions 
of  this  act;  provided  in  all  such  cases  of  credit  that  security  be  first  given  by  the 
Executors  or  Administrators,  together  with  two  or  more  sufficient  sureties  to  be 
approved  of  by  the  said  Commissioners,  by  a  bond  to  His  Majesty,  his  heirs  or 
successors,  in  double  the  amount  of  the  Duty,  for  the  due  and  full  payment  of 
the  sum  for  which  credit  shall  be  given,  within  six  calendar  months,  or  any 
less  period,  and  of  the  interest  for  the  same,  at  the  rate  of  Ten  Pounds  per 
Centum  per  annum,  from  the  expiration  of  such  period  until  payment  thereof,  in 
case  of  any  default  of  payment  at  the  time  appointed ;  and  such  Probate  or  Let- 
ters of  Administration  being  duly  stamped  in  the  manner  aforesaid,  shall  be  as 
valid  and  available  as  if  the  proper  Duty  had  been  at  first  paid  thereon,  and  the 
same  had  been  stamped  accordingly. 

Sect.  4G.  Provided,  that  if  at  the  expiration  of  the  time  to  be  allowed  for  the 
payment  of  the  Duty  on  such  Probate  or  Letters  of  [517]  Administration,  it  shall 
appear  to  the  satisfaction  of  the  said  Commissioners,  that  the  Executor  or  Ad- 
ministrator to  whom  such  credit  shall  be  given  as  aforesaid,  shall  not  have  re- 
covered Effects  of  the  Deceased  to  an  amount  sufficient  for  the  payment  of  the 
Duty,  it  shall  be  lawful  for  the  said  Commissioners  to  give  such  further  time  for 
the  payment  thereof,  and  upon  such  terms  and  conditions  as  they  shall  think  ex- 
pedient. 

Sect.  47.  Provided  also,  that  the  Probate  or  Letters  of  Administration  so  to 
be  stamped  on  credit  as  aforesaid,  shall  be  deposited  with  the  said  Commission- 
ers of  Stamps,  and  shall  not  be  delivered  up  to  the  Executor  or  Administrator 
until  payment  of  the  Duty,  together  with  such  interesfas  aforesaid,  if  any  shall 
become  due;  but,the  same  shall  nevertheless  be  produced  in  evidence  by  some  of- 
ficer of  the  Commissioners  of  Stamps,  at  the  expense  of  the  Executor  or  Ad- 
ministrator, as  occasion  shall  require. 

Sect.  48.  That  the  Duty  for  which  credit  shall  be  given  as  aforesaid,  shall  be 
a  debt  to  His  Majesty,  his  heirs  or  successors,  from  the  personal  estate  of  the 
Deceased,  and  shall  be  paid  in  preference  to,  and  before  any  other  debt  whatso- 
ever due  from  the  same  estate ;  and  if  any  Executor  or  Administrator  of  the  es- 
tate of  the  Deceased  shall  pay  any  other  debt  in  preference  thereto,  he  or  she 
shall  not  only  be  charged  with  and  be  liable  to  pay  the  Duty  out  of  his  or  her 
own  estate,  but  shall  also  forfeit  the  sum  of  Five  Hundred  Pounds. 

Sect.  49.  That  if  before  payment  of  the  Duty  for  which  credit  shall  be  given 
in  any  such  case  as  aforesaid,  it  shall  become  necessary  to  take  out  Letters  of 


APPENDIX.  517 

Administration  de  bonis  non  of  the  Deceased,  it  shall  also  be  lawful  for  the.  said 
Commissioners  to  cause  such  Letters  of  Administration  de  bonis  non,  to  be  duly 
stamped  with  the  particular  stamp  provided  to  be  used  on  Letters  of  Adminis- 
tration of  that  kind,  for  denoting  the  payment  of  the  Duty  in  respect  of  the  Ef- 
fects of  the  Deceased,  on  some  prior  Probate  or  Letters  of  Administration  of  the 
same  Effects,  in  such  and  the  same  manner  [518]  as  if  the  Duty  had  been  actual- 
ly paid,  upon  having  Letters  of  Administration  dc  bonis  non  deposited  with  the 
said  Commissioners,  and  upon  having  such  further  security  for  the  payment  of 
the  Duty,  as  they  shall  think  expedient;  and  such  Letters  of  Administration  shall 
be  as  valid  and  available  as  if  the  Duty  for  which  credit  shall  be  givenhad  been 
paid. 

Sect.  50.  In  regard  to  Probate  or  Wills  and  Letters  of  Administration,  that 
where  any  part  of  the  Personal  Estate  which  the  Deceased  was  possessed  of  or 
entitled  to,  shall  be  alleged  to  have  been  trust  property,  if  the  person  or  persons 
who  shall  be  required  to  make  any  affidavit  or  affirmation  relating  thereto,  conform- 
ably to  the  provisions  of  the  said  act  of  the  forty-eighth  year  of  His  Majesty's 
reign,  shall  reside  out  of  England,  such  affidavit  or  affirmation  shall  and  maybe 
made  before  any  person  duly  commissioned  to  take  affidavits,  by  the  Court  of 
Sessions,  or  Court  of  Exchequer  in  Scotland,  or  before  one  of  His  Majesty's 
Justices  of  the  Peace  in  Scotland,  or  before  a  Master  in  Chancery  Ordinary  or 
Extraordinary  in  Ireland,  or  before  any  Judge  or  civil  Magistrate  of  any  other 
country  or  place  where  the  party  or  parties  shall  happen  to  reside ;  and  every 
such  affidavit  or  affirmation  shall  be  as  effectual  as  if  the  same  had  been  made 
before  a  Master  in  Chancery  in  England,  pursuant  to  the  directions  of  the  said 
last-mentioned  act. 

Sect.  51.  Provided,  that  where  it  shall  be  proved  by  oath  or  proper  vouchers 
to  the  satisfaction  of  the  said  Cominissioners  of  Stamps,  that  an  Executor  or 
AdiTfiinistrator  hath  paid  debts  due  and  owing  from  the  Deceased,  and  payable  by 
law  out  of  his  or  her  Personal  or  Moveable  Estate,  to  such  an  amount  as  being 
deducted  from  the  amount  or  value  of  the  Estate  and  Effects  of  the  Deceased, 
for  or  in  respect  of  which  a  Probate  or  Letters  of  Administration,  or  a -compen- 
sation of  a  testament,  testamentary  or  dative,  shall  have  been  granted  after  the 
thirty-first  day  of  August  one  thousand  eight  hundred  and  fifteen,  or  which  shall 
be  included  in  any  inventory  exhibited  and  recorded  in  a  Commissary  Court  in 
Scotland  as  the  law  reqpires,  after  that  day,  shall  reduce  the  same  to  a  sum 
which,  if  it  had  been  the  whole  gross  amount  or  value  [519]  of  such  Estate  and 
Effects,  would  have  occasioned  a  less  Stamp  Duty  to  be  paid  on  suchr  Probate 
or  Letters  of  Administration,  or  Confirmation  or  Inventory,  than  shall  have  been 
actually  jiaid  thereon  under  and  by  virtue  of  this  act,  it  shall  be  lawful  for  the 
said  Commissioners  to  return  the  difference,  provided  the  same  shall  be  claimed 
within  three  years  after  the  date  of  such  Probate  or  Letters  of  Administration  or 
Confirmation,  or  the  recording  pf  such  confirmation  as  aforesaid  ;  hut  where,  by 
reason  of  any  proceeding  at  law  or  in  equity,  the  debts  due  from  the  Deceased 
shall  not  have  been  ascertained  and  paid,  or  the  Effects  of  the  Deceased  shall  not 
have  been  recovered  and  made  available,  and  in  consequence  thereof  the  Execu- 
tor or  Administrator  shall,  be  prevented  from  claiming  such  return  of  Duty  as 
aforesaid,  within  the  said  term  of  three  years,  it  shall  be  lawful  for  tiie  Commis- 
sioners of  the  Treasury  to  allow  sucli  fiirtli(tr  tiirie  for  making  the  claim,  as  may 
appear  to  them  to  be  reasonable  under  the  circumstances  of  the  case. 


519  APPENDIX. 

By  Sect.  8.  It  is  enacted,  that  the  powers  and  provisions  of  former  acts  shall 
be  put  in  execution,  with  regard  to  the  Duties  under  this  act.  It  is  therefore 
necessary  to  recur  to  the  statutes  36  Geo.  3.,  45  Geo.  3.  and  48  Geo.  3. 

By  the  stat.  3G  Geo.  3.  c.  52.  sect.  3.  It  is  enacted,  that  the  duties  thereby 
imposed  shall  be  under  the  management  of  the  Commissioners  of  Stamps,  who 
are  to  prepare  proper  stamps,  denoting  each  rate,  and  to  do  all  acts  for  carrying 
that  act  into  execution. 

Sect.  5.  And  that  all  persons  may  be  able  to  take  receipts  for  Legacies,  and 
Residue,  or  shares  of  Kesidue,  according  to  that  act,  the  Commissioners  are  to 
provide  paper  adapted  for  such  receipts,  and  to  print  thereon  the  form  of  words 
in  the  schedule  annexed  to  that  Act,  and  any  person  requiring  them  may  fill  them 
up  with  sums,  names,  and  dates  according  to  the  aforesaid  provisions,  or  use  the 
like  form  on  any  other  paper,  vellum,  or  parchment. 

[520]  Sect.  6.  That  in  all  cases  wherein  it  is  not  thereby  otherwise  provided, 
the  Duties  shall  be  paid  by  an  Executor  or  Administrator,  retaining  for  himself 
or  for  any  other  person,  or  on  delivering  or  satisfying  to  any  other  person,  any 
Legacy  or  Residue,  or  share  of  Residue  ;  and  where  any  Executor  or  Adminis- 
trator shall  retain,  but  not  have  paid  the  Duty,  the  Duty  shall  be  a  debt  to  His 
Majesty  from  the  Executor  or  Administrator;  and  where  the  Legacy  is  paid, 
without  paying  or  retaining  the  Duty,  the  Duty  shall  be  a  debt  from  the  Execu- 
tor or  Administrator  and  the  Legatee,  or  party  in  distribution. 

Sect.  7.  That  any  gift  by  will  to  be  satisfied  out  of  the  Personal  Estate  of  any 
person  dying  after  that  act,  or  out  of  the  Personal  Estate  which  such  person 
shall  have  power  to  dispose  of,  shall  be  deemed  a  legacy  within  that  act,  whether 
given  by  way  of  annuity,  or  in  any  otlier  form,  and  whether  charged  only  on  Per- 
sonal Estate  or  charged  also  on  Real  Estate,  except  so  far  as  it  shall  be  paid  out 
of  Real  E  state,*  in  a  due  execution  of  the  will ;  and  every  donatio  mortis  causa 
shall  be  deemed  a  legacy  under  that  act. 

Sect.  8.  That  the  vahie  of  annuities  for  lives,  or  years,  or  other  times  to  be 
calculated,  and  the  Duties  thereon,  shall  be  charged  according  to  the  table  in  the 
schedule  annexed  to  that  act,  and  the  Duty  to  be  paid  by  four  equal  payments, 
viz.  on  completing  the  payment  of  the  respective  four  first  years,  and  the  value 
of  such  annuity,  if  determinable  on  any  contingency  besides  the  death  of  any 
person,  to  be  calculated  without  regard  to  such  contingency.  But  if  such  annuity 
determine  by  death  before  the  four  years  payment  be  due,  then  the  Duty  shall  be 
payable  only  in  proportion  to  so  many  of  the  payments  as  became  due ;  and 
where  the  annuity  shall  determine  on  any  other  contingency,  not  only  all 
future  payments  of  the  Duty  shall  cease,  but  the  person  who  shall  have  pre- 
viously paid  any  such  duty  may  obtain  a  return  of  so  much  as  to  reduce  [521]  it 
to  so  much  as  would  be  payable  for  the  annuity  calculated  according  to  the  term 
for  which  it  should  have  endured,  and  that  such  abatement  shall  be  settled  by 
the  Commissioners  according  to  the  tables  in  the  schedule. 

Sect.  9.  That  the  value  of  annuities  payable  out  of  a  Legacy  shall  be  calcu- 
lated, and  the  Duty  charged  thereon  in  the  same  manner  as  directed  with  regard 
to  general  annuities,  and  the  Duty  on  such  Legacy  (if  any  Duty  shall  be  pay- 
able thereon)  shall  be  calculated  on  the  value  of  the  Legacy,  after  deducting 
the  value  of  the  annuity ;  and  the  Duty  for  the  annuity  shall  be  paid  by  the  per- 

*  But  now  see  stat.  45  Geo.  3.  c.  28,  above  referred  to. 


APPENDIX.  521 

son  entitled  to  the  Legacy,  subject  to  the  like  proviso  as  the  Duty  on  general 
annuities,  and  shall  be  deducted  out  of  the  annuities  for  the  first  four  years,  or  so 
long  as  the  said  annuities  shall  be  paid. 

Sect.  10.  That  the  Duty  on  a  Legacy  given  for  purchasing  an  annuity  of  a 
certain  amount  shall  be  calculated  on  the  sum  necessary  to  purchase  such  annuity 
according  to  the  aforesaid  tables,  and  shall  be  deducted  from  such  sum,  and  paid 
as  on  Pecuniary  Legacies,  and  the  annuity  to  be  purchased  shall  be  reduced  in 
proportion  to  the  Duty  payable  thereon. 

Sect.  11.  That  if  any  benefit  shall  be  given  in  such  terms  that  the  amount  or 
value  can  only  be  ascertained  from  time  to  time  by  the  actual  application  of  the 
fund ;  or  if  the  amount  or  value  of  such  benefit  cannot,  by  reason  of  the  form  or 
manner  of  the  gift,  be  so  ascertained,  that  the  Duty  can  be  charged  thereon  under 
any  of  the  aforesaid  directions,  then  such  Duty  shall  be  charged  on  the  sums  or 
effects  which  shall  be  applied  from  time  to  time  for  such  respective  purposes,  as 
separate  and  distinct  Legacies  or  Bequests,  and  shall  be  paid  out  of  the  fund  ap- 
plicable for  such  purposes,  or  charged  with  answering  the  same. 

Sect.  12.  That  the  Duty  on  a  Legacy  or  Residue  to  be  enjoyed  by  different 
persons  in  succession,  who  shall  be  chargeable  with  the  Duties  at  the  same  rate, 
shall  be  paid  as  in  case  of  a  Legacy  to  one  [522]  person  ;  and  where  a  Legacy 
given  so  as  to  be  enjoyed  in  succession  by  different  persons,  some  one  of  whom 
shall  not  be  liable  to  any  Duty,  and  others  liable  to  different  Duties,  so  that  one 
rate  of  Duty  cannot  be  immediately  charged,  all  persons  who  shall  be  entitled 
for  life,  or  for  any  temporary  interest,  shall  be  charged  with  the  Duty  in  respect 
of  such  bequest  in  the  same  manner  as  if  the  annual  produce  thereof  had  been 
given  by  way  of  annuity ;  such  charges  shall  begin  when  the  parties  begin  to 
receive  the  produce,  and  shall  be  pjiid  by  equal  yearly  payments  for  four  years, 
if  they  so  long  receive  such  produce ;  and  all  persons  who  shall  become  abso- 
lutely entitled  to  such  Legacy  so  to  be  enjoyed  in  succession  shall,  when  they 
shall  begin  to  receive  the  profit  thereof,  pay  the  Duty  for  the  same,  or  for  such 
part  as  shall  be  so  received,  in  the  same  manner  as  if  it  had  been  given  imme- 
diately. 

Sect.  13.  That  the  Duty  on  a  Legacy  or  Residue  to  be  enjoyed  by  different 
persons  in  succession,  on  whom  the  Duty  is  chargeable  at  the  same  rate,  shall 
be  deducted  and  paid  by  the  Executor  or  Administrator,  on  payment  of  the 
Legacy  or  Residue  to  any  Trustee ;  and  where  the  Legacy  or  Residue  shall  net 
be  paid  to  a  Trustee,  the  Duty  shall  be  paid  out  of  the  capital  of  the  property  so 
given,' on  receipt  of  any  part  of  the  produce  by  any  of  the  persons  so  entitled  in 
succession,  according  to  the  amount  of  the  capital  of  which  such  produce  shall 
be  so  received ;  and  where  the  Duty  shall  be  chargeable  at  different  rates,  the 
Executor  or  Administrator  shall  be  chargeable  with  such  Duties  in  succession 
in  like  manner  as  if  on  an  immediate  bequest,  unless  where  the  property  shall 
have  been  vested  in  Trustees,  in  which  case  the  Trustees  shall  be  chargeable 
with  the  Duties  as  if  they  were  Executo'rs  or  Administrators;  and  where  any 
partial  interest  shall  be  given,  or  shall  arise  out  of  any  such  property,  so  to  be 
enjoyed  in  succession,  and  such  partial  interest  shall  be  satisfied  by  any  person 
enjoying  the  property,  such  person  shall  be  charged  with  the  Duties  payable  for 
such  partial  [523]  intertist,  and  shall  pay  and  retain  the  same  as  if  he  were  Ex- 
ecutor, and  shall  be  <kbtor  to  the  King  for  it  as  if  Executor. 

Sect.  H.  That  no  Duty  shall  be  paid  on  plate,  furniture,  or  other  things  not 


523  APPENDIX. 

yielding  any  income,  and  given  to  persons  in  succession,  till  tlio  same  shall  be 
actually  sold,  or  shall  come  to  some  person  having  power  to  sell  the  same,  or 
having  an  absolute  interest  therein,  and  shall  be  then  charged  on  that  person 
only,  and  not  on  the  executor,  by  reason  of  his  having  assented  to  such  bequest. 

Sect.  15.  That  where  different  persons  shall  be  entitled  in  succession  to  a 
legacy,  the  duty  shall  be  charged  thereon  as  given  to  be  enjoyed  in  success- 
ion, whether  the  parties  entitled  thereto  shall  take  the  same  under  a  will  or  under 
an  intestacy. 

Sect.  16.  That  where  a  legacy  shall  be  given  in  joint-tenancy  to  persons, 
some  or  one  of  whom  shall  be  chargeable  with  the  duty,  and  any  others  not 
chargeable,  the  person  or  persons  chargeable  shall  afterwards,  by  survivorship 
or  severance,  become  entitled  to  a  larger  interest,  he  shall  pay  the  duty  on  such 
increased  interest. 

Sect.  17.  That  where  a  legacy  shall  be  given  subject  to  a  contingency  on 
which  the  same  may  go  to  another  person,  such  bequest,  unless  chargeable  as 
an  annuity,  shall  be  charged  with  duty  as  an  absolute  bequest,  and  such  duty 
shall  be  paid  out  of  the  capital  of  such  legacy,  notwithstanding  the  same  may, 
on  such  contingency,  go  to  a  person  not  chargeable  with  the  same  duty,  or  with 
any  duty.  And  if  the  legacy  on  such  contingency  go  to  a  person  chargeable 
■with  a  higher  rate  of  duty  than  the  duty  so  paid,  the  person  becoming  entitled 
shall  pay  the  difference. 

Sect.  18.  That  where  a  legacy  shall  be  subjected  to  a  power  of  appointment  in 
favour  of  particular  persons,  such  property  shall  be  charged  with  duty  as  property 
given  in  succession,  and  all  parties  [524]  shall  be  charged  in  respect  of  their 
several  interests,  whether  previous,  or  subject  to,  or  under,  or  in  default  of  such 
appointment.  And  where  any  property  shall  be  given  for  a  limited  interest,  and 
an  absolute  power  of  appointment  shall  also  be  given  to  any  person,  who  would 
not  be  entitled  in  default  of  appointment,  such  property,  on  the  execution  of 
such  power,  shall  be  charged  with  the  same  duty  as  if  the  same  property  had 
been  immediately  given  to  the  person  executing  the  power,  after  allowing  any 
duty  before  paid  in  respect  thereof.  And  where  property  shall  be  given 
■with  a  general  power  of  appointment,  which  property,  in  default  of  appointment, 
would  belong  to  the  party  having  the  power ;  the  duty  shall  be  paid  by  that  per- 
son as  if  it  had  been  an  absolute  legacy. 

Sect.  19.  Tliat  money,  or  personal  estate  directed  to  be  laid  out  in  the  pur- 
chase of  real  estate,  shall  pay  duty  as  personal  estate,  unless  the  same  shall 
be  given  to  be  enjoyed  in  succession,  and  then  each  person  entitled  thereto  in 
succession  shall  pay  duty  for  the  same,  as  if  there  had  been  no  direction  for 
such  purchase  of  real  estate,  unless  the  same  were  applied  in  such  purchase 
before  such  duty  accrued ;  but  if  before  the  same  shall  be  so  applied  in  the  pur- 
chase of  real  estate,  any  person  shall  become  absolutely  entitled  to  the  inherit- 
ance thereof  in  possession,  the  same  duty  shall  be  paid  thereon  as  would  have 
been  payable  on  general  personal  estate. 

Sect.  20,  That  estates  pur  outer  vie  applicable  by  law  as  personal  estate, 
shall  be  charged  with  the  duties  as  personal  estate. 

Sect.  21.  That  money  given  hy  will  to  pay  the  legacy  duty  shall  not  be 
charged  with  the  duty.     -  *     ■ 

Sect.  22.  That  where  specific  legacies,  and  the  resid\^  of  personal  estate 
consists  of  property  not  reduced  into  money,  the  executor  or  administrator  may 


APPENDIX.  524 

set  a  value  thereon,  and  offer  the  duty  thereon  at  the  stamp  office,  or  may  re- 
quire the  commissioners  to  appoint  an  appraiser  at  the  expense  of  the  execu- 
tor or  administrator,  and  the  commissioners  may  accept  the  duty  so  offered. 
But  [525]  if  the  commissioners  shall  not  be  satisfied  with  such  offer,  they  may 
appoint  a  person  to  appraise,  and  may  assess  the  duty  on  such  appraisement,  and 
demand  such  duty.  But  the  parties  may  cause  that  appraisement  to  be  reviewed 
by  the  commissioners  of  the  land  tax  for  the  district  where  the  effects  shall  be, 
at  their  next  meeting,  if  fourteen  days  shall  have  intervened,  and  if  not,  then  at 
their  then  next  meeting,,  giving  six  days  notice  to  the  commissioners  of  stamps; 
and  the  commissioners  of  the  land  tax  may  appoint  an  appraiser  and  hear  such 
appeal,  and  their  determination  shall  be'  final ;  qnd  if  the  valuation  of  the  com- 
missioners of  stamps  shall  not  be  appealed  from  within  the  time  aforesaid,  or 
shall  be  affirmed,  the  duty  shall  be  paid  accordingly  ;  and  if  it  shall  be  varied  on 
the  appeal,  the  duty  shall  be  paid  according  to  the  variation;  and  if  the  duty  as- 
sessed as  aforesaid  shall  exceed  the  duty  first  offered,  the  expense  of  the  ap- 
praisement, and  other  proceedings  in  assessing  such  duty,  shall  be  paid  by  the 
executor  or  administrator;-  and  if  any  dispute  arise  between  any  person  entitled 
to  any  such  legacy  or  residue,  and  the  executor  or  administrator,  with  respect  to 
the  value  thereof,  or  the  amount  of  the  duty  payable  thereon,  the  duty  shall  be 
assessed  by  the  commissioners  of  the  stamps,  or  the  commissioners  of  land  tax 
on  appeal  as  before;  and  where  the  effects  are  ten  miles  from  London,  a  person 
deputed  by  the  commissioners  of  stamps  shall  act  for  them,  but  under  their  con- 
trol. 

Sect.  23.  That  where  any  legacy  shall  be  satisfied  otherwise  than  by  payment 
of  money,  or  application  of  specific  effects  for  that  purpose,  or  shall  be  compound- 
ed for  less  than  the  amount,  the  duty  shall  be  paid  only  on  such  amount,  pro- 
vided that  if  any  bequest  be  made  in  satisfaction  of  any  other  legacy  or  bequest 
unpaid,  the  duty  shall  not  be  paid  on  both  subjects,  although  toth  may  be 
chargeable  with  duty,  but  shall  be  paid  on  the  subject  yielding  the  largest  duty. 

[536]  Sect.  24.  That  where  an  executor  or  administrator  shall  offer  to  pay  or  de- 
liver a  legacy  or  residue  on  payment  of  the  duty,  and  it  shall  be  refused,  and  a  re- 
lease or  discharge  shall  be  refused,  then,  although  no  actual  tender  be  made,  if  a 
suit  shall  be  afterwards  instituted,  the  court  may  order  all  costs  to  be  paid  by  the 
person  who  so  refused,  and  also  order  such  person  to  give  a  discharge,  and  may 
deduct  such  costs  with  the  duty  out  of  the  legacy  or  effects ;  and  in  case  of  a  suit 
for  a  legacy  or  residue,  the  court  may  in  a  summary  way  order  the  payment  of 
the  legacy  or  residue,  and  tlie  duty  and  costs. 

Sect.  25.  That  if  any  suit  shall  be  instituted. concerning  the  administration  of 
the  personal  estate  of  any  testator  or  intestate,  in  which  any  direction  shall  be 
given  for  payment  of  any  legacies  or  residue,  the  court  shall  in  such  direction 
provide  for  the  payment  of  the  aforesaid  duties ;  and  in  all  accounts  of  personal 
estate,  the  court  shall  take  care  that  no  allowance  be  made  for  any  legacy  or  re- 
sidue without  proof  of  payment  of  the  duties  payable  thereon. 

Sect.  20.  That  no  executor  or  administrator  may  pay  or  deliver  a  legacy,  or 
any  part  of  a  legacy,  or  make  distribution  of  any  part  of  the  personal  estate,  on 
payment  of  the  proportion  of  the  duties  in  respect  of  such  parts  of  the  personal 
estate  as  shall  be  so  administered. 

Sect.  2.7.  That  no  executor  or  administrator,  or  trustee,  sliall  pay,  deliver,  or 
satisfy,  or  compound  for  any  legacy  or  residue  of  personal  estate,  or  any  part 


526  APPENDIX. 

therooftlierebysubjected  to  a  duty,  without  taking  a  receipt  or  discharorc  in  writing', 
expressing  tlie  date  of  such  receipt  and  name  of  the  testator  or  intestate,  and  the 
name  of  the  legatee  or  party  in  distribution,  and  of  the  person  to  whom  the  re- 
ceipt is  given,  and  the  amount  of  the  legacy  or  residue,  or  part  thereof, -and  of 
the  duty  payable  thereon,  and  no  written  receipt  shall  be  received  in  evidence, 
unless  stamped  as  required  by  that  act,  and  no  evidence  shall  be  given  of 
payment  [527]  of  any  such  legacy  or  residue,  or  part  of  residue,  without  pro- 
ducing such  receipt  stamped,  unless  payraenfc»of  the  duty  shall  be  first  proved; 
provided  that  a  copy  of  the  entry  in  the  commissioners'  books  shall  be  evidence 
of  such  payment:  provided  also,  that  payment  of  any  annuity,  or  legacy  charged 
as  an  annuity,  shall  not  be  deemed  a  payment  for  which  such  stamped  receipt 
shall  be  required,  except  that  which  shall  complete  the  payment  for  the  first  four 
years. 

Sect.  28.  That  any  executor,  or  administrator,  or  trustee,  or  other  person  liable 
to  pay  the  aforesaid  duty,  who  shall  pay,  or  satisfy,  or  compound  for  any  legacy 
or  residue,  without  taking  such  receipt  as  aforesaid,  and  causing  it  to  be  stamped 
wiUiin  the  time  allowed  by  that  act,  shall  forfeit  ten  per  cent  on  the  money  or 
value  for  which  such  receipt  ought  to  have  been  given ;  and  every  person  re- 
ceiving such  legacy  or  residue,  without  signing  such  receipt,  expressing  the 
duty  to  have  been  allowed  or  paid,  and  dated  on  the  day  of  signing,  shall  forfeit 
ten  per  cent  on  the  money  or  value  of  the  property  so  received  or  taken. 

Sect.  29.  That  every  such  receipt  shall  be  brought  within  twenty-one  days 
from  the  date  to  the  stamp  office  or  other  appointed  office,  to  be  stamped,  paying 
the  duty  for  it,  and  on  such  payment  the  proper  officer  shall  write  thereon  an  ac- 
knowledgement of  the  duty  paid  in  words  in  length,  and  bearing  date  on  the  day 
of  payment,  and  sign  it,  and  enter  an  account  in  a  proper  book,  and  then  the  re- 
ceipt shall  be  stamped  with  the  proper  one  of  the  four  stamps ;  and  if  the  duty 
shall  be  paid  at  any  inferior  office,  the  receipt,  with  the  acknowledgement  of  the 
duty  paid,  shall  within  twenty-one  days  be  sent  to  the  head  office,  and  be  there 
stamped  ;  and  the  inferior  officer  shall  sign  an  acknowledgement  that  such  receipt 
was  left  with  him  for  such  purpose,  and  such  acknowledgement  shall  be  returned 
to  him  on  his  re-delivering  the  legacy  receipt  stamped ;  but  if  any  such  legacy 
receipt  shall  not  be  brought  to  any  such  office  within  twenty-one  days,  it  may 
be  brought  in  like  manner  within  three  calendar  months  after  the  [528]  date 
thereof,  paying  the  duty,  and  ten  per  cent  on  that  duty  as  a  penalty,  and  the 
receipt  may  be  then  stamped.  But  the  commissioners  shall  not,  on  any  pretence, 
except  as  after  mentioned,  stamp  any  receipt  unless  the  duty  shall  be  paid,  and 
the  receipt  produced  to  be  stamped  in  manner  and  within  the  times  respectively 
limited  as  aforesaid. 

Sect.  30,  That  if  it  shall  appear  to  the  satisfaction  of  the  commissioners,  on 
oath  or  affirmation,  before  a  justice  of  peace,  or  master  or  masters  extraordinary 
in  Chancery,  that  less  duty  has  been  paid  for  any  legacy  or  residue  than  ought  to 
have  been  paid  by  mistake,  without  intent  to  defraud,  and  if  application  be  made 
to  the  commissioners  to  rectify  such  mistake  before  any  suit,  and  within  three 
calendar  months  after  payment  of  what  was  really  paid,  the  commissioners  may 
accept  the  difference  with  ten  per  cent  thereon,  as  a  penalty  in  full  of  the  duty 
and  all  penalties,  and  may  cause  an  acknowledgement  to  be  written  after  the  pay- 
ment of  the  just  duty  on  the  receipt,  and  cause  the  receipt  to  be  properly  stamped. 

•Sect.  31.  That  the  party  paying  or  receiving  any  legacy  or  residue  contrary  to 


APPENDIX.  528 

the  provisions  of  that  act,  who  shall,  withia twelve  calendar  months  after  the  of- 
fence committed,  discover  the  other  party  or  parties  offending,  so  that  he  or  they 
may  be  thereof  convicted,  they  shall  be  discharged  from  all  penalties  incurred 
under  that  act. 

Sect.  32.  That  where  by  reason  of  the  infancy,  or  absence  beyond  sea,  of  a 
legatee,  Or  party  in  distribution,  the  executor  or  administrator  cannot  pay  any 
legacy  or  residue,  though  he  may  have  assets,  he  may  pay  such  legacy  or  resi- 
due, or  any  part  thereof,  deducting  the  duty,  into  the  bank,  with  the  privity  of 
the  accountant-general  of  the  court  of  Chancery,  to  the  account  of  the  person  en- 
titled, and  such  payment  shall  be  a  sufficient  discharge,  provided  the  duty  be  paid, 
and  the  accountant-general  shall  lay  it  out,  without  any  formal  request,  in  the 
purchase  of  three  per  cent  consolidated  annuities,  \yhich,  with  the  dividends 
thereon,  shall  be  transferred  to  the  party  entitled,  by  application  to  the  court  [529] 
of  Chancery  on  motion  or  by  petition  in  a  summary  way,  provided  that  if  the 
money  afterwards  appear  to  have  been  improperly  paid  in,  the  court  may  on  pe- 
tition in  a  summary  way  dispose  of  it  as  justice  shall  require;  and  if  it  shall 
appear  that  too  much  duty  has  been  paid,  the  excess  shall  be  returned  by  the 
commissioners  of  stamps ;  and  if  it  shall  appear  that  the  duty  paid  was  too  little, 
the  party  who  paid  the  money  into  the  bank  may  pay  the  deficiency,  with  the 
penalties,  if  any,  and  may  apply  to  the,court  of  Chancery  in  a  summary  way  for 
repayment  of  the  further  money  so  paid  to  the  commissioners  for  duty  out  of  the 
money  in  the  bank. 

Sect.  33.  That  if  at  the  end  of  two  years  after  the  death  of  the  testator  or  in- 
testate, it  shall  appear  to  the  commissioners,  that  it  will  require  time  to  collect 
the  debts  or  effects,  or  that  from  circumstances  it  will  be  difficult  to  ascertain 
and  adjust  the  amount  of  the  residue,  and  the  parties  interested  shall  desire  to 
compound  the  duty,  the  parties,  with  consent  of  the  commissioners,  may  apply 
to  the  court  o£  exchequer  in  England  or  Scotland,  if  the  deceased  resided  there, 
and  in  manner  prescribed  in  the  clause,  obtain  leave  for  such  purpose. 

Sect.  34.  That  if  at  any  time  after  paying  the  duty  on  a  legacy,  or  a  residue, 
it  shall  be  necessary  for  any  legatee  or  party  entitled,  to  refund  all  or  any  part 
of  what  he  received,  the  commissioners  may  on  due  proof  made  on  oath  of  the 
amount  of  such  sum  refunded,  repay  the  money  over-received  for  the  duty. 

*  Sect.  35.  That  where  an  executor  or  administrator  shall  be  entitled  to  any 
legacy  or  residue,  he  shall  be  chargeable  with  the  duty  when  he  shall  be  entitled 
in  a  course  of  administration  to  retain  it,  and  he  shall,  before  retaining,  transmit 
to  the  commis[530]sioners  of  stamps  a  note  of  the  particulars  intended  to  be  re- 
tained, and  the  amount  and  value  thereof,  and  the  duty  he  offers  thereon,  and  the 
commissioners  shall  charge  tlie  proper  duty  thereon,  and  it  shall  be  paid  ;  and 
on  such  payment  the  proper  officer  shall  at  the  foot  of  a  duplicate  of  the  assess- 
ment duly  stamped  give  a  receipt  for  the  said  duty,  which  receipt  shall  be  a  dis- 
charge for  the  duty  ;  and  if  such  executor  or  administrator  shall  neglect  to  pay 
such  duty  within  fourteen  days  after  it  ought  to  have  been  paid,  he  shall  forfeit 
and  pay  treble  the  value  of  the  duty. 

*  Upon  Uiis  seclioa  it  has  been  decided  that  the  legacy  duty  is  to  be  i)aid  upon  the  ag- 
gregate amount  of  the  residue  of  the  testator's  property,  at  the  tunc  of  tlie  executor's  de- 
livering into  tlie  stamp  office  the  note  of  what  he  intends  to  retain  as  residuary  legatee. 
And  that  interest  iiccumulaled  upon  the  residue  constitutes  a  part  thereof,and  is  liable  to 
the  duty.     Attorney-General  v.  Lord  G.  IL  Cavendish,  1  Wigiitwick,  82. 


530  APPENDIX. 

Sect.  37.  That  if  probate,  or  grant  of  administration  shall  be  repealed  after  the 
executor  or  administrator  shall  have  paid  any  of  the  said  duties  out  of  the  effects 
of  the  deceased  which  shall  not  be  allowed  to  him  because  improperly  paid,  the 
commissioners  shall  repay  the  duties  so  paid.  But  if  the  duty  ou^ht  to  have 
been  paid  by  the  rightful  executor  or  administrator,  then  the  payment  shall  be 
valid,  and  allowed  by  him  in  account,  and  shall  be  deemed  made  as  in  a  due 
course  of  administration. 

Sect.  38.  That  persons  swearing  or  affirming  falsely  touching  the  said  duties, 
shall  be  subject  to  the  penalties  of  perjury. 

Sect.  39.  That  persons  altering  any  assessment  or  receipt  after  the  same  shall 
have  been  signed  by  the  proper  officer ;  or  when  altered,  utter  or  publish  the 
same  as  true,  with  intent  to  defraud  His  Majesty,  shall  forfeit  five  h\indred 
pounds. 

Sect.  40.  That  persons  counterfeiting  the  said  stamps  shall  suffer  death,  as  in 
case  of  felony,  without  benefit  of  clergy. 

Sect.  43.  That  one  moiety  of  all  penalties  and  forfeitures  thereby  imposed, 
where  no  other  mode  of  prosecution  is  thereby  prescribed,  shall,  if  sued  for 
within  three  calendar  months  next  after  they  were  incurred,  be  to  the  king,  and 
the  other  moiety,  with  the  full  costs  of  suit,  to  the  informer  or  person  suing  for 
them  within  the  time  aforesaid ;  and  tljey  may  be  sued  for  in  the  court  of  ex- 
chequer in  England  for  offences  in  England,  and  in  [531]  Scotland  for  offences 
there.  But  proceedings  may  be  stopped,  if  it  appear  that  the  penalties  were  in- 
curred without  intention  of  fraud. 

Sect.  44.  That  in  default  of  prosecution  for  such  penalties  within  the  time 
aforesaid  they  shall  be  recoverable  only  for  the  crown,  by  information  in  the 
court  of  exchequer  in  England  and  Scotland  respectively. 

Sect.  47.  That  all  actions  or,  suits,  which  shall  be  commenced  against  any 
pefson  for  any  thing  done  in  pursuance  of  that  act,  shall  be  commenced  within 
six  calendar  months  after  the  fact  committed,  and  not  afterwards. 

By  the  stat.  45  Geo.  3.  c.  28,  «ect.  2,  it  is  enacted.  That  the  duties  granted 
by  this  act,  shall  not  extend  to,  or  be  charged  or  payable  in  respect  of  any  lega- 
cies satisfied  out  of  any  real  or  personal  estate,  or  in  respect  of  any  residue  or 
share  of  any  personal  estate,  or  of  any  moneys,  or  residues,  or  parts  or  shares  of 
moneys  arising  from  the  sale  of  any  real  estate  of  any  person  dying  before  the 
passing  of  this  act. 

Sect.  3.  That  nothing  herein  contained  shall  extend  to  charge  with  any  of  the 
duties  hereby  granted  any  legacy  or  residue,  or  part  or  share  of  residue,  which 
shall  be  given  or  pass  to  or  for  the  benefit  of  the  husband  or  wife  of  the  de- 
ceased ;  or  to  or  for  the  benefit  of  any  of  the  royal  family. 

Sect.  4.  That  every  gift  by  any  will  or  testamentary  instrument  of  any  per- 
son dying  after  the  passing  of  this  act,  which  by  virtue  of  any  such  will  or  tes- 
tamentary instrument  shall  have  effect,  or  be  satisfied  out  of  the.  personal  es- 
tate of  such  person  so  dying,  or  out  of  any  personal  estate  which  such  person 
shall  have  power  to  dispose  of  as  he,  or  she  shall  think  fit,  or  which  shall  have 
been  charged  upon  or  made  payable  out  of  any  real  estate,  or  be  directed  to  be 
satisfied  out  of  any  moneys  to  arise  by  the  sale  of  any  real  estate  of  the  person 
so  dying,  or  which  such  person  may  have  the  power  to  dispose  of,  whether  the 
same  shall  be  given  by  way  of  annuity,  or  in  any  other  form,  shall  be  deemed 
and  taken  [532]  to  be  a  legacy  within  the  true  intent  and  meaning  of  this  act : 


APPENDIX.  532 

Provided  always,  that  nothing  herein  contained  shall  be  construed  to  extend  to 
the  charging  with  the  duties  by  this  act  granted,  any  specific  sum  of  money,  or 
any  share  or  proportion  thereof,  charged  by  any  marriage  settlement  or  deed  upon 
any  real  estate,  in  any  case  in  which  any  such  specific  sum,  or  share  or  propor- 
tion thereof,  shall  be  appointed  or  apportioned  by  any  will  or  testamentary  in- 
strument unSer  any  power  given  for  that  purpose  by  any  such  marriage  settle- 
ment or  deed. 

Sect.  5.  That  the  duties  hereby  granted  upon  legacies,  or  charged  upon,  or 
made  payable  out  of  any  real  estate,  or  out  of  any  moneys  to  arise  by  the  sale  of 
any  real  estate,  or  upon  residues,  or  parts  or  shares  of  residues  of  any  such 
moneys,  shall  be  accounted  for,  answered,  and  paid  by  the  trustees,  to  whom  the 
real  estate  shall  be  devised,  out  of  which  the  legacy,  or  any  money  arising  out 
of  the  sale  or  mortgage,  or  other  disposition  of  such  real  estate  shall  be  to  be 
paid  or  satisfied  ;  or  if  there  shall  be  no  trustees,  then  by  the  person  entitled  to 
such  real  estate,  subject  to  any  such  legacy,  or  by  the  person  empowered  or  re- 
quired to  pay  or  satisfy  any  such  legacy ;  and  the  said  duties  shall  be  retained  by 
the  person  paying  or  satisfying  any  such  legacy,  or  share  of  money,  in  like  man- 
ner, and  according  to  such  rules  and  regulations,  and  under  and  subject  to  such 
penalties,  as  far  as  the  same  can  be  made  applicable,  as  are  contained  in  stat. 
36  Geo.  3.  c.  52.  . 

By  Stat.  42  Geo.  3.  c.  99,  sect.  2,  it  is  enacted.  That  in  every  case  in  which  an 
executor  or  executors,  or  administrator  or  administrators,  shall  not  have  paid  the 
duties  granted  and  payable  upon  or  in  respect  of  any  legacies  or  any  personal  es- 
tate, or  any  share  or  shares  of  anj,  personal  estate,  of  any  persons  dying  intes- 
tate, by  and  in  pursuance  of  an  act  passed  in  the  thirty-sixth  year  of  the  reign  of 
His  present  Majesty,  or  any  other  act  or  acts  of  parliament  relating  to  duties  on 
legacies  or  shares  of  personal  estates,  within  proper  and  reasonable  time,  it  shall 
be  lawful  [533]  for  His  Majesty's  court  of  exchequer,  upon  application  to  be 
made  for  that  purpose  on  behalf  of  the  commissioners  appointed  for  managing 
the  duties  on  stamped  vellum,  parchment,  or  paper,  on  such  affidavit  oraflBdavits 
as  to  the  said  court  may  appear  to  be  sufficient,  to  grant  a  rule,  requiring  such 
executor  or  executors,  administrator  or  administrators,  to  show  cause  why  he, 
she  or  they  should  not  deliver  to  the  said  commissioners  an  account,  upon  oath, 
of  all  the  legacies,  or  of  the  personal  property,  respectively  paid,  or  to  be  paid,  or 
administered  by  him,  her  or  them, .as  the  case  may  be,  and  why  the  duties  on  any 
such  legacies,  or  any  shares  or  residue  of  any  such  personal  estate,  have  not  been 
paid,  or  should  not  be  forthwith  paid  according  to  law,  and  to  make  any  such  rule 
of  court  absolute  in  evety  case  in  which  the  same  may  appear  to  the  said  court 
to  be  proper  and  necessary  for  the  better  enforcing  the  payment  of  any  of  the  said 
duties. 

By  the  statute  48  Geo.  3.  c.  149,  sect.  35,  it  is  enacted,  That  from  and  after 
the  passing  of  this  act,  the  probate  of  the  will  of  any  j)erson  deceased,  or  the 
letters  of  administration  of  the  effects  of  any  person  deceased,  heretofore  granted, 
or  to  be  hereafter  granted,  either  before  or  upon  or  after  the  tenth  day  of  October, 
one  thousand  eight  hundred  and  eight,  shall  be  deemed  and  taken  to  be  valid, 
and  available  by  the  executors  or  administrators  of  the  deceased,  for  recovering, 
transferring  or  assigning  any  debt  or  debts,  or  other- personal  estate  or  effects, 
whereof  or  whereto  the  deceased  was  possessed  or  entitled,  either  wholly  or  par- 
tially, as  a  trustee,  notwithstanding  the  amount  of  value  of  such  debt  or  debts,  or 


533 


APPENDIX. 


Other  personal  estate  or  effects,  or  the  amount  or  vahie  of  so  much  thereof,  or 
sucli  interest  therein,  as  was  trust  property  in  the  deceased  (as  the  case  may  be), 
shall  not  be  included  in  the  amount  or  value  of  the  estate,  in  respect  of  which 
the  stamp  duty  was  paid  on  such  probate  or  letters  of  administration. 

By  sect.  36,  That  where  the  executors  or  administrators  of  any  [534]  person 
deceased  shall  be  desirous  of  transferring  or  of  receiving  the  dividends  of  any 
share,  standing  in  the  name  of  the  deceased,  of  and  in  any  of  the  government  or 
parliamentary  stocks  or  funds  transferrable  at  the  Bank  of  England,  or  of  and  in 
the  stock  and  funds  of  the  governor  and  company  of  the  Bank  of  England,  or  of 
and  in  the  stock  and  funds  of  any  other  company,  corporation,  or  society  what- 
soever, passing  by  transfer  in  the  books  of  such  company,  corporation,  or  society, 
under  and  by  virtue  of  any  such  probate  or  letters  of  administration  as  aforesaid, 
and  shall  allege  that  the  deceased  was  possessed  thereof  or  entitled  thereto,  either 
wholly  or  partially,  as  a  trustee,  it  shall  be  lawful  for  the  said  governor  and 
company  of  the  Bank  of  England,  and  for  any  such  other  company,  corporation  or 
society  as  aforesaid,  or  their  respective  officers,  for  their  indemnity  and  protection, 
to  require  such  affidavit  or  affirmation  of  the  fact,  as  hereinafter  is  mentioned,  if 
the  fact  shall  not  otherwise  satisfactorily  appear ;  and  thereupon  to  permit  such 
executors  or  administrators  to  transfer  the  Stock  or  fund  in  question,  or  receive 
the  dividends  thereof,  without  regard  to  the  amount  of  the  stamp  duty  on  the  pro- 
bate of  the  will  of  the  deceased,  or  the  letters  of  administration  of  his  or  her  ef- 
fects ;  and  where  the  executors  or  administrators  of  any  person  deceased  shall 
have  occasion  to  recover  any  debt  or  debts,  or  other  personal  effiscts,  due  or  ap- 
parently belonging  to  the  deceased,  and  shall  allege  that  the  deceased  was  pos- 
sessed thereof  or  entitled  thereto,  either  wholly  or  partially,  as  a  trustee,  it  shall 
be  lawful  for  the  person  or  persons  liable  to  pay  or  deliver  such  debt  or  debts  or 
other  effects,  to  require  such  affidavit  or  affirmation  of  the  fact  as  hereinafter  is 
mentioned,  if  the  fact  shall  not  otherwise  satisfactorily  appear ;  and  thereupon  to 
pay,  deliver,  or  make  over  the  debt  or  debts,  or  other  effects  in  question,  to  such 
executors  or  administrators,  or  as  they  shall  direct,  without  regard  to  the  amount 
of  the  stamp  duty  on  the  probate  of  the  will  of  the  deceased,  or  the  [535]  letters 
of  administration  of  his  or  her  effects  :  and  where  the  executors  or  administrators 
of  any  person  deceased  shall  have  occasion  to  assign  or  transfer  any  debt  or  debts 
due  to  the  deceased,  or  any  chattels  real,  or  other  personal  effects,  whereof  or 
whereto  the  deceased  was  possessed  or  entitled,  and  shall  dlege  that  the  same 
respectively  was  or  were  due  to  or  vested  in  the  deceased,  either  wholly  or  par- 
tially, as  a  trustee,  it  shall  be  lawful  for  the  person  or  jjersons,  to- whom  or  for 
whose  use  such  debt  or  debts,  chattels  real,  or  other  personal  effects,  shall  be 
proposed  to  be  assigned  or  transferred,  to  require  such  affidavit  or  affirmation  of 
the  fact  as  hereinafter  is  mentioned,  if  the  fact  shall  not  otherwise  satisfactorily 
appear;  and  thereupon  to  accept  the  proposed  assignment  or  transfer,  without 
regard  to  the  amount  of  the  stamp  duty  on  the  probate  of  the  will  of  the  deceas- 
ed or  the  letters  of  administration  of  his  or  her  effects. 

Sect.  37.  That  upon  any  such  requisition  as  aforesaid  the  executor  or  execu- 
tors, administrator  or  administrators  of  the  deceased,  or  some  other  person  or 
persons  to  whom  the  facts  shall  be  known,  shall  make  a  special  affidavit  or  affir- 
mation of  the  facts  and  circumstances  of  the  case,  stating  the  property  in  ques- 
tion, and  that  the  deceased  had  not  any  beneficial  interest  whatever  in  the  same, 
or  no  other  beneficial  interest  therein  than  shall  be  particularly  mentioned  and 


APPENDIX. 


535 


set  forth  (as  the  case  may  be)  in  trust  for  some  other  person  or  persons,  whose  • 
name  or  names,  or  other  sufficient  description,  shall  be  specified  in  such  affidavit 
or  affirmation,  or  for  such  purposes  as  shall  be  specified  therein ;  and  that  the 
beneficial  interest  of  the  deceased,  if  any,  in  the  property  in  question,  doth  not 
exceed  a  certain  value  to  be  therein  also  specified,  according  to  the  best  estimate 
that  can  be  made  thereof,  if  reversionary  or  contingent,  and  that  the  amount  or 
value  of  the  estate,  for  which  the  stamp  duty  was  paid  on  the  probate  of  the  will 
of  the  deceased,  or.on  the  letters  of  administration  of  his  or  her  effects,  is  suffi- 
cient to  include  and  cover  such  beneficial  into [536] rest  of  the  deceased,  as  well 
as  the  rest  of  the  personal  estate,  whereof  or  whereto  the  deceased  was  benefi- 
cially possessed  or  entitled,  and  for  which  such  probate  or  letters  of  administra- 
tion shall  have  been  granted,  as  far  as  the  same  have  come  to  the  knowledge  of 
such  executor  or  executors,  administrator  or  administrators ;  and  where  the  affi- 
davit or  affirmation  of  the  facts  and  circumstances  of  the  trusts  shall  be  made  by 
any  other  person  than  the  executor  or  executors,  administrator  or  administrators 
of  the  deceased,   such  executor  or  executors,  administrator  or  administrators, 
shall  make  affidavit  or  affirmation,  that  the  same  are  true  to  the  best  or  his,  her, 
or  their  knowledge,  and  that  the  property  in  question  is  intended  to  be  applied 
and  disposed  of  accordingly;  which  affidavits  or  affirmations  shall  be  sworn  or 
made  before  a  master  in  Chancery',  ordinary  or  extraordinary,  (who  is  hereby 
authorized  to  take  the  same,  and  administer  the  proper  oath  or  affirmation  for 
that  purpose,)  and  shall  be  delivered  to  the  party  or  parties  requiring  the  same, 
and  shall  be  sufficient  to  indemnify  and  protect  the  party  or  parties  acting  upon 
the  faith  thereof;  and  if  any  person  or  persons  making  any  such  affidavit  or  affir- 
mation as  aforesaid,  shall  knowingly  and  wilfully  make  false  oath  or  affirmation, 
of  or-  concerning  any  of  the  matters  to  be  therein  specified  and  set  forth,  every 
person  so  offending,  and  being  thereof  lawfully  convicted,  shall  be  subject  and 
liable  to  such  pains  and  penalties  as  by  any  law  now  in  force  persons  convicted 
of  wilful  and  corrupt  perjury  are  subject  andliable  to. 

By  Sect.  43,  commissioners  are  authorized  to  remit  penalties  incurred  before 
passing  this  act,  by  non-payment  of  the  duty  on  legacies,  if  the  duty  in  arrear 
shall  be  paid  on  or  before  the  31st  January  1809. 

Sect.  44.  That  in  all  cases  not  provided  for  by  the  preceding  clause,  where 
any  receipt  or  discharge  given  for  any  legacy,  or  for  the  residue  or  any  share  of 
the  residue  of  any  personal  estate,  which  shall  have  been  given  by  will  or  other 
testamentary  instrument,  or  have  devolved  to  any  person  or  persons  upon  intes- 
tacy, [537]  shall  be  brought  to  the  head  office,  to  be  stamped  after  the  expira- 
tion of  three  calendar  months  from  the  date  thereof,  it  shall  be  lawful  for  the 
said  commissioners  to  cause  the  same  to  be  duly  stamped,  for  making  the  same 
•  available,  on  payment  of  the  duty  which  shall  be  payable  in  respect  thereof,  to- 
gether with  the  penalty  incurred  in  consequence  of  the  same  not  having  been 
brought  to  be  stamped  before  the  expiration  of  such  three  calendar  months ;  and 
where  any  such  receipt  or  discharge  shall  have  been  signed  out  of  Gi'eat  Britain, 
if  the  same  shall  be  brought  to  be  stamped  within  twenty-one  days  after  its  be- 
ing received  in  Great  Britain,  it  shall  be  lawful  for  the  said  commissioners  to 
remit  any  penalty  that  may  have  been  incurred  thereon,  and  to  cause  the  same 
to  be  duly  stamped,  on  payment  of  the  duty  payable  in  respect  thereof;  any  thing 
contained  in  any  former  act  or  acts  to  the  contrary  notwithstanding. 


INDEX. 


Page 
ABATEMENT— of  legacies  ....  -  339,  et  seq. 

Absence — beyond  sea  .---..        93.  101 

Account — action  of,  by  executor      -  -  -  -  -  -  433 

stated  .-..-  ...  1G2 

promise  to  executor  thereupon — how  it  operates      ...    ib. 
bill  in  equity  against  executor  or  administrator,  for,  of  assets      72,  479 
how  it  shall  be  taken  in  equity  between  surviving  partner  and  the 
representatives  of  the  deceased  ....  454 

executor  not  admitting  assets  bound  to,  in  equity,  though  his  co- 
executor  admit  them         -..-.-  486 
on  a  bill  to,  by  infant  legatee  against  two  executors,  one  of  whom 
in  his  answer  denied  proving  the  will,  or  receiving  any  assets, 
account  directed  against  both       ....  -  486 

administrators  bound  to,  as  executors       .   -  -  -    82.  96,  97 

— in  the  spiritual  court,  at  the  suit  of  legatees,  or  parties  in  dis- 
tribution ..--.-       491.  ^4 
proof  of,  by  executor  ......  492 

hov/  controverted  -  -  -  -  -    ib. 

executor  subject  to  the  penalties  of  perjury  if  false  -    ib. 

after  the  executor's  death  ...  -    ib. 

exhibited  by  the  administrator,  when  it  must  be  sworn  to, 
when  it  need  not  .....  493 

not  conclusive  against  legatees,  or  parties  in  distribution, 
who  are  absent  .....  494 

citation  by  executor  or  administrator  of  legatees,  or  parties 

in  distribution,  on  passing  his  ...    ib. 

at  the  promotion  of  a  creditor        ....  495 

creditor  not  permitted  to  call  for  vouchers,  object  to  the  account    -    ib. 
Action — See  Remedies. 

Ademption — of  a  legacy       -  ...  -  329,  et  seq. 

pro  tanto  ...----  333 

revocation  of  a  will  in  the  nature  of    -  -  -  -    21 

Administration — Origin  of  ....  80,  et  seq. 

of  husband's  right  to '  -  83,  84.  125.  242,  243.  373 

how  controuh:!d  or  varied       ...  85,  86,  218 

where  the  grant  to  tlic  liusbaud  is  uccessary  -  -  217 

D 


540  INDEX. 

Administration — continued.  Page 

where  the  grant  to  the  husband  is  not  necessary      -  -  217 

cxtcrorum      ------  C8.  86 

grant  of,  to  widow  or  next  of  kin      -  -  -  -     86 

of  part  to  widow  and  part  to  next  of  kin       -  -  -    87 

order  in  which  kindred  arc  entitled  to  -  -  -     90 

half-blood  equally  admissible  to       -  -  -  -     91 

when  committed  to  feme  covert,  and  how    -  -  -    ih. 

how  granted  if  wife  be  next  of  kin  and  a  minor        -  -    92 

ceases  on  her  coming  of  age  -  -  -  -    ib. 

who  incapable  of  taking        -  -  -  -  -     93 

person  incapable  of  being  an  executor  .  -  -    H. 

attainted  of  treason    -  -  -  -  -    ib, 

of  felony      -  -  -  -  •    ib. 

outlaw      -  -  -  -  -  -  -    ib. 

prisoner    -  -  -  -  -  -  •    ib. 

persons  beyond  sea  -  -  -  -  -    ib. 

bankrupt   -  -  -  -  -  -  -    ib. 

non  compos  mentis  -  -  -  -       103.  122 

feme  covert  competent  to  take         -  -  -  -    94 

alien  friend  competent  to  take  -  -  -  -    ib. 

though  only  of  the  half-blood  -  .  -    ib. 

analogy  of,  to  probate  -  -  -  -  -    ib. 

privilege  of  granting  personal  .  -  -  -    ib. 

a  party  generally  incapable  of  acting  before  grant  of  95 

may  file  a  bill  in  chancery  before  -  -    ih. 

not  commence  an  action  at  law  before  -    ib. 

penalty  for  acting  and  omitting  to  take  out  for  six  months        96 
■when  letters  of,  issue  -  -  -  -  -    ib. 

oath  in  taking  out  -  .  -  -  ib. 

bond  and  condition  thereof,  91.  97.  247,  248.  370.  493 

when  once  granted,  not  to  be  committed  to  another  during 
the  life  of  grantee  -  -  -  -  -    98 

special  -  -  -  -  -  -  -    ib. 

cum  testamento  annexo  43,  44.  65.  92,  98.  118.  321.  372 

not  granted  till  executor  renounces  or  fails  to  appear  -    93 

or  if  several  executors,  till  they  all  renounce,  or  fail  to  appear    ib. 
grant  of  such  to  residuary  legatee  or  legatees,  -    99,  117 

durante  minoritate,  -  34.  100,  et  seq.  123,  124.  357 

in  a  restrictive  form       -----  404 

effect  thereof  -  .  -  -  -  405 

when  it  shall  not  be  granted  -  -  -  -  102 

after  such  grant  of,  when  receiver  appointed  -       102,  103 

when  it  ceases,  -----      100,  101 

if  granted  during  the  minority  of  several  infants       -  -  101 

old  distinction  between  such  grant  during  the  minority  of 
infant  executor,  and  during  that  of  next  of  kin      -  -100 

ordinary's  power  at  common  law  extended  only  to  the 
former  case  -  -  -  -  -  124 


INDEX.  541 

Administration — continued.  Page 

pendente  lite  -  -  -  -  -  -103 

not  granted  till  a  plea  has  been  given  in  and  admitted      -    ib. 
receiver  not  appointed  after  such  grant     -  -  -  103 

during  incapacity  -  -  -  -  -    ib. 

durante  absentia         -----         70,  104 

by  virtue  of  the  statute       -  -  -  -       104,  105 

when  it  ceases       -  -  -  -  -  -  104 

to  a  creditor  .  -  .  -  104.  122.  473 

where  several  creditors  apply       -  -  -  -  106 

to  a  debtor  -----       128.  349 

to  a  legatee  ------  105 

to  such  person  as  the  ordinary  shall  approve  -  -    ib. 

ordinary's  power  of  granting  administration  at  common  law, 
in  what  cases        -  -  -  -  -  -    ib. 

may  in  such  cases  impose  terms  on  grantee  -  lOG 

limited  in  regard  to  time      -  -  -  -  -    ib. 

to  property  .  -  -  -  -    ib, 

not  to  be  twice  granted  in  respect  to  one  thing         -  -    ib. 

in  case  of  several  grants  of,  grantees  liable  to  be  sued  as 
one  person,  -----       106.  107 

on  condition  -  -  -  -  -  -  107 

to  appointee  of  the  crown  of  the  effects  of  a  bastard  107. 

380,  387 
to  attorney    -------  108 

grant  of,  in  a  foreign  court  -  _  -  -    ib, 

of  the  effects  of  seamen  and  marines  -  -  -  109 

on  death  of  administrator  or  executor  intestate         -  -  114 

grant  of,  to  several,  survives  -  -  -      114.  407 

immediate     -  -  -  -  -  -  -115 

on  death  of  executor  before  probate  -  -    ib. 

of  next  of  kin  before  grant  of  administra- 
tion   -  -  -  -  -  116 

in  case  of  death  of  husband  before  he  takes  out 

administration  to  wife  -  -       116.  224 

on  death  of  executor  residuary  legatee  before  pro- 
bate intestate  -  -  -      117.  118 
on  leaving  a  will              -            -  -  -  118 

de  bonis  non  -  -  -  -  HG.  124.  349 

on  death  of  an  executor  after  probate  intestate     -  118 
on  death  of  feme  covert  executrix  -       118.  242 

and  residuary  legatee  -  -  -  118 

on  the  death'of  tlie  acting  executor,  and  renuncia- 
tion of  the  survivor      .  -  .  -     ib, 
or  such  survivor's  dying  intestate     -       118,  119 
or  in  case  of  administration  during  the  mino- 
rity of  the  executor  of  an  executor  -  119 
as  well  de  bonis  non,  as  immediate,  maybe  granted  to  residu- 
ary higatee             -             -             -             -             -  -117 


542  INDEX. 

Administration — continued.  Page 

how  granted  -  -  -  -  -  -119 

generally  by  writing  under  seal       ...    ih. 
may  be  by  mere  entry  in  the  registry  of  the  spiritual 
court        -  -  -  -  -  -ill. 

not  by  parol  -  -  -  -  -    ib. 

in  the  grant  the  style  of  jurisdiction,   as  well  as 
name  of  the  ordinary,  to  be  inserted         -  -  120 

a  party  may  refuse  accepting  .  -  -  -    ih. 

when  void 46.  120 

when  voidable  .-----  121 

of  repealing  the  grant  of       -  -  -  -  -  122 

in  what  cases    -  -  -  44.  122.  125 

in  what  not       -  -  -  123,  124,  125,  12G 

■    temporal  courts,  to  judge  of  the  cause  of     -  -  -  123 

of  repealing  for  want  of  form  ...  -  125 

effect  of  ....  -    ib. 

or  quia  improvide  ...  -    ib. 

or  on  account  of  abuse  -  -       125,  126 

effect  of  a  second  grant  of,  before  repeal  of  first       -  -  126 

of  prohibition  when  ordinary  is  proceeding  to  repeal 

in  what  cases  -  -  -  -  -  127 

in  what  not  -  .  .  -    ih. 

how  repeal  of,  affects  mesne  acts  when  the  grant  was  void 

127,  128 
or  voidable  .....      129,  297 

voidable  in  case  of  a  suit  by  citation  or  appeal        129,  130.  131 
payment  of  debt  to  an  administrator  under  grant  of,  void  or 
voidable,  good       -  -  -  -  -  -130 

effect  of  grant  of,  to  executor  de  son  tort       ...  367 
though  only  pendente  lite  ....  3G8 

special,  ceasing,  effect  of  pending  an  action  against  the  ad- 
ministrator ......  407 

after  judgment  obtained  against  such  administrator      -    ih. 
bond  creditor,  as  well  as  next  of  kin,  entitled  to  an  assign- 
ment of  the  administration  bond  from  the  ordinary       495,  496 
what  breach  he  may  show     -  -  -  -  496 

what  not        -  -  -  -  -  -    ib. 

Administrator— derives  his  authority  from  the  ordinary    95.  100, 101.  114.  131 

interest  of 133.  241 

when  it  vests        ......  133 

of  special  -  -  -  -  -  -  241 

of  a  married  woman  -  -  -  -  -    ib. 

of  joint      ---.---  243 
survives  -  -  -  -  114.  243.  408 

of  de  bonis  non       .----•  243 

powers  of 369.  447 

office  of,  how  far  the  same  as  that  of  an  executor  -  369 

bound  to  account  as  an  executor   .  -  -    82.  96,  97 


INDEX. 


543 


Administrator — continued.  rage 

actions  by     -  -  -  -  -  -       157.  431 

suits  in  equity  by     -  -  -  -  "  "  ^^^ 

actions  against         ...  -  -      458.  4/4 

suits  in  equity  against  -  -  -  *  -  4/ J 

in  the  ecclesiastical  court  against         -  -  -  489 

powers  of,  limited    ------  404 

actions  by      -  -  -  -  349.  405.  447,  448 

actions  against  ...  -  -  474 

where  pending  the  action,  the  administra- 
tion determines  .  -  -  407 
after  judgment       -            -            -  -    ib. 

powers  o{  durante  minoritate  as  distinguished  from  executor 
durante  minoritate  -----  40o 

where  he  administers  in  part,  and  delivers  to  the  executor  on 
his  coming  of  age  all  the  residue  -  -  -  -  475 

of  his  keeping  the  goods  after  executor  comes  of  age  103. 474, 475 
actions  by-  -  -  -  -  ■  "  445 

actions  against         ------  474 

powers  of  durante  absentia    -  -  -  -  -  406 

of  pendente  lite  -  -  -  -  •    ib. 

of  joint  -  -  -  -  114.407,408 

not    distinguishable    from    those    of    co-execu- 
tors     -  '-  -  -  -        407,408 

actions  by  -  -  -  -  "  448 

actions  against     -  -  -  -  -  471 

death  of 114 

de  bonis  non  -  -  -  117.349.448 

actions  by  -  -  -  -  *  448 

actions  against     -  -  -  -  -  474 

Advancement— of  a  child    -  -  -  -      S29.  371.  376,  et  seg.  381 

pro  tanto         -  -  -  -  '  *        ^^''''  ^'" 

what  shall  not  be        -  -  -  -  380,381.396 

by  the  custom  of  London         -  -  -  -  393,  et  scq. 

must  arise  exclusively  from  the  personal  estate      -  -  390 

not  restricted  to  a  provision  made  on  marriage,  or  in  pursu- 
ance of  a  marriage  agreement      .  -  -  -  397 
by  the  custom  of  York            -----  400 
may  arise  out  of  real  estate    -            -            -            -  -  401 
See  Distribution. 
Advowson— in  gross  or  in  fee           -            -            -            -            "       18^'  I'^O 
term  for  years  in           -            -            -            -    139.  151.  101.  4.37 
after  an  avoidance         -            -            -            -    151.  189,  190.  216 
purchased  for  son  of,  an  advancement  -            -            -       376,  377 
descended  to  the  heir  in  fee-simple,  real  assets             -  -  409 
Affidavit — of  executor  on  holding  to  bail                  .            .            -  -  438 

Affinity ^^^ 

Agent— wiicre  executor  embezzles  the  property        -  -  -  -  427 

Alien— will  of ^-"^ 


544 


INDEX. 


Alien — continued.  Pa^e 

executor  or  administrator     -  -  .  -  .  34,  94 

when  incapable  of  being       -  -  -  -  -  -    ih. 

property  of,  in  our  funds       ----..  337 

Allowance — executor  shall  have  no,  for  executing  the  office  -  -  456 

unless  directed  by  the  will        -  -    ib. 

whether  a  legacy  be  left  to  him  as  a  re- 

compence  or  not        ...    n, 
but  in  what  special  cases  entitled  to  a 
commission  -  -  -  -  457 

Amercements — in  the  king's  courts  of  record  ....  2GO 

in  the  king's  courts  baron    -  -  -  -  -    ib. 

Annexation  of  a  codicil  to  a  will      -  -  -  -  .  .31 

Annuity — a  chattel  interest  .....       178.  200 

generally  descendible  to  the  heir  -  -  -  178.200.203 

when  not  -  -  -  178 

personal     .----...  303 

charged  on  lands   -.-.-.-  305 
out  of  a  parsonage  -  -  -  -  .  -     55 

grant  by  the  crown  of,  out  of  the  four  and  a-half  per  cent  Barba- 
does  duty,  with  collateral  security        ....  200 

to  commence  after  father's  death,  an  advancement  -  -  377 

remedy  in  equity  to  secure  the  payment  of  -  -  -  482 

Annum,  diem,  et  vastum        ......        I44.  190 

Anvils  .........  197 

Appeal — in  regard  to  probate  -  -  -  -  -  -    73 

to  administration  -  -  -  .  .  -    95 

probate  suspended  by        -  -  -  -  .         73.  129 

administration  suspended  by  -  -  -  -  -  131 

where  probate  is  affirmed  on  -  -  .  .  -    75 

revoked  on  -  -  -  -  75.  78.  131 

administration  revoked  on  -  -  .  -  -  129 

Appointment — of  wife  in  the  nature  of  a  will  -  -  -  -    85 

of  the  crown  of  the  effects  of  a  bastard  -  -       107,108 

Apportionment  of  rent  in  favour  of  executors  or  tenant  for  life        -       208.  436 
Appraisement — of  deceased's  effects  -  .  .  .       250,  251 

commission  of        -  -  -  .  .73. 252, 253 

Apprentice — executor  has  no  interest  in  an  -  .  -  -  -  152 

how  far  executor  bound  to  maintain      -  -  .  .  476 

distinction  between  covenant  to  maintain,  and  covenant  to  in- 
struct an       -  -  -  -  .  .  -    ib. 

justices  of  the  peace  have  no  authority  to  order  an  executor  to 
maintain  an  ......    ib. 

by  the  custom  of  London  executor  bound  to  put  the,  to  another 
master  of  the  same  trade       -  -  -  .  -    ib. 

Apprentice  fee — no  advancement      ......  380 

no  advancement  by  the  custom  of  London  -  -  .  396 

Apprentice  parish  regulations — executor  bound  to  observe  in  regard  to        -  476 
Arbitration — submission  to  by  executor        .      ■       -  .  -  -  425 


INDEX.  545 

Page 
Arrest — by  an  executor  before  probate         -  -  -  -  -    48 

executor  in  general  not  liable  to  -  -  -  -  -  467 

in  what  cases  he  is       -  -  -  -  -    ib. 

Artichokes   ---------  150 

Artificers,  British,  going  abroad — ^when  incapable  of  making  a  will  -    13 

of  being  executors       -  -  -  -  -    36 

of  any  legacy  ------  300 

Assent         ........       306. 345 

Assets — definition  of-------  137 

what  are, 

term  of  years  devised  for  payment  of  debts    ...  140 
leases         -  -  -  -  -  -  -    ib. 

though  executor  assent  to  the  devise  of  them     -  -    ih. 

estate  per  auter  vie  -  -  -  -  _    40 

value  of  lease  beyond  the  rent        -  -  141.166.239 

reversion  of  a  term  .....  141 

new  lease  granted  to  executor        ....    n, 

executor  chargeable  for  a  term  as,  where  he  purchases  the 

reversion  in  fee  -  .  .  -  .  .    ib. 

lease  surrendered  by  executor         ....  143 

land  devised  to  an  executor  for  a  term  for  payment  of  debts, 

where,  during  the  term,  the  fee  descends  on  him  -    ib, 

term  which  a  feme  covert  has  as  executrix,  where  husband 
purchases  the  reversion,  though  extinct  as  to  her  yet,  in 
respect  to  a  stranger        .  -  -  -  -    ib. 

estate  in  fee  in  the  plantations  as  to  creditors        -        416,417 
lease  granted  to  executor  pursuant  to  covenant  with  the  tes- 
tator       --.-..       144,  160 
rent  in  arrear  at  the  testator's  death  ...  145 

debt  or  damages  recovered  at  law     157,  158,  159,  160,  161.  201 
money  recovered  by  decree  in  equity  -  -       160,161 

goods  taken  out  of  executor's  possession        -.       -  -  153 

goods  delivered  to  executor  pursuant  to  contract  with  the 
testator    -.----.  IGO 

chattels  resulting  to  executor  on  non-performance  of  the  con- 
dition on  which  they  were  granted  -  -  -  164 
testator's  chattels  redeemed  out  of  pawn  with  his  money   -    ib, 
if  redeemed  with  executor's  money,  the  surplus          -  120 
a  remainder             -            -            -            -            -  -164 

arising  by  increase  -  -  -  -  -  166 

profits  of  lands  demised      -  -  -  -  -    ib. 

lease  grairted  by  a  copyholder  for  one  year  only     -  -  180 

promissory  note  given  to  testator's  wife     -  -  .  228 

money  deposited  by  her  to  be  kept  for  her  separate  use      -  229 
when  debt  due  from  executor  shall  be        -  -       319, 350 

what  not 

term  raised  for  a  particular  purpose  not       -  -        142,143 


546  INDEX. 

Assets — what  not — continued-  Page 

lease  on  condition  not,  where  condition  is  broken  before  the  les- 
see's death     ..-----  113 

trust  of  a  term  not         -  -  -  -  -  •    ib. 

bond  assigned  by  testator  not    -  -  -  -  -  118 

goods  bailed  for  a  particular  purpose  not  -  -  -  154 

goods  distrained  not       -  -  -  -  -  •    ih. 

debt  or  damages  recovered  by  testator  not,  till  levied  or  re- 
duced into  possession,  or  released  by  executor  -      161,  1G2 
if  recovered  by  executor  they  are  assets  immediately         -  102 
presentation  where  the  grantee  of  the  next  presentation  dies 

after  the  church  becomes  void,  and  before  presentation,  not  -  210 
money  by  marriage  agreement  articled  to  be  invested  in  land 
and  settled,  not  -  -  -  -  -  -410 

copyhold  estates  not,  either  in  the  hands  of  heir  or  devisee    411,  412 
no  measure  of  justice  between   the   heir  and   executor  of  mort- 
gagee        -.-.--.       184.  18G 
application  of  -.-.---  258 

where  originally  deficient,  and  where  they  afterwards  become  so  by 
misapplication       -  -  -  -  -  -  -341 

when  aliened  by  executor  cannot  be  followed  by  a  creditor  at  law    -  25G 

and  in  equity  only  on  voluntary  alienations  by  fraud  -  257 

proof  of         ..---.--  464 

admission  of,  executor  generally  bound  by  ...  482 

express  -  -  -  -  -  -    ib. 

implied  .....      464.  483 

when  not  .....    ib. 

when  the  admission  is  waived     -  .  -  -  483 

where  executor  refers  to  arbitration  the  question  whether  he  has  or 
has  not      -  -  -  -  -  ...  .  465 

judgment  of,  quando  acciderint  -  -  .  -  -  400 

how  far  affected  by  the  assignment  of  commissioners  of  bankrupt    -  488 
bill  for  a  discovery  and  account  of,  in  what  cases    -  .  .  480 

legal  and  personal,  or  assets  enter  mains,  what         ...  409 
legal  and  real,  or  assets  by-descent,  what  -  -    409,  et  seq. 

term  in  gross  ....  410 

estate  per  aider  vie  when  personal  -  -    ib. 

real, 

lands  descended  to  the  heir  in  fee  simple    -  -  409 

advowson  so  descended       ....    ib. 

estate  ^er  auifer  r«e  when  real  -  -      410,  411 

term  vested  in  trustee  to  attend  the  inheritance  410.  427 
lands  devised  by  tenant  in  fee  simple  -  -  411 

unless  for  payment  of  debts     .  -  -    ib. 

or  for  raising  portions  for  younger  children,  ac- 
cording to  agreement  before  marriage  -    ib. 
estate  in  fee  in  our  American  plantations      -      416,  417 
equitable  what,  and  how  distinguished  from  legal    -            -      412.  416 


INDEX.  547 

Assets — continued.  Page 

legal, 

trust  estate  descended  to  the  heir  .  -  -  -  415 

equity  of  redemption       .  -  -  -        415,  416.  (Semft. 

equitable, 

estates  devised  to  an  executor  to  sell  -  -   414.  Semb. 

estates  descended  to  the  heir  charged  with  the  payment  of 
debts  -  -  -  -  -  -  -  414 

term  in  trust  to  attend  the  inheritance  ...  437 

where  lands  shall  be,  only  for  the  payment  of  debts  -  -  416 

only  for  the  payment  of  legacies  -  -     ib. 

the  marshalling  of,  in  favour  of  creditors      -  -  :      417.  420 

where  the  debt  is  considered  as  the  personal  debt 
of  the  testator  himself,  and  a  collateral  charge 
on  the  real  estate         .  -  -  -  418 

where  thecharge  is  on  the  real  estate  principally, 
.     ".  and  the' personal  security  is  only -collateral     -     ib. 

priority  of  the  application  of  real,  when  the  personal  estate  is  either 
exempt  or  exhausted  -  -  -  -  -        -    -  419 

'  when  shall  not  be  marshalled  in  favour  of  creditors  -      431,  422 

the  marshalling  of,  in  favour  of  legatees        -  ^  -  -  -  420 

as  against  lands  descended  .  -  -     ib. 

devised  -    .        -      420,  421 

if  legacy  be  given  out  of  real  and  personal  es- 
tate, payable  at  a  future  day,  and  legatee  die 
.    before  -  -  -  -  -  422 

,         '  in  favour  of  wife's   claim  to  paraphernalia  as    , 

against  real  assets  descended  -  -    ib. 

devised  ....       422,  423 

not  in  favour  of  a  charitable  bequest         -  -  423 

conversion  of  into  3  per  cents  ....  -319 

•Assignee — in  deed  ......  167,  168.  199 

inlaw     -  ...  -  -  -       167,  168 

aftermesne  assignments  -  -  -  -       169,  170 

Assignment — executor's  ititerest  by  -  -  -  -       167.  170 

by  executor  of  a  term  in  trust  to  attend  the  inheritance         -  427 
of  debt  to  the  king  -  -  -  -  -261 

of  legacy  by  commissioners  of  bankrupt        -  -       315.  321 

of  administration  bond  by  the  ordinary  -  -       495,496 

Attaint— writ  of       -  -  - .  -  ■  -  -  -  -  159 

Attainted  person       -  -  -  -  -  34.  93,  103.  134.  213 

Attainder — of  high  treason,  writ  of  error  to  reverse       '        -  '  -  -  435 

property  aceruing  to  the  crown  by         ...  -  260 

Attestation— of  a  will  -  -  -  -  -  -  2.  16 

of  a  codicil       -  -  -  -  -  -  6.  16 

clause  of,  not  filled  up  -  ...  -       3 

Attorney — administl-ation  granted  to  .  -  .  -  -  108 

letter  of 114.  221 


548  INDEX. 

Attorney — continued.  Page 

executor  or  administrator  of,  need  not  deliver  a  bill  of  costs  be- 
fore suing  for  the  same  -  -  -  -  -  441 
Avowry — for  rent  as  incident  to  a  reversion  for  years  in  arrear  at  the  tes- 
tator's death                 ....             -       434,  435 
accrued  due  after  it              ....  -  437 
Audita  querela           -             -             -             -'         128.131,132.159.260.268 
Auditors  where  the  king  is  executor             -            -            -            -  -     33 

Aunt 91.  385 

Award — executor  entitled  to  the  benefit  of  -  -  -  -  168 

executor's  submission  to        -        -  -  -  -      425.  465 

where  he  personally  engages  to  perform  .  -  -  465 

where  there  is  a  reference  of  the  question  whether  he  has  or  has 
not  assets  -  -  -  -  -  -  -     ib. 

how  far  he  is  concluded  by  an,  he  has  submitted  to  -  -     ih- 

'    ■  rtiay  be  attached  for  non  performance  of  .  -  -    ib. 

money  due  to  him  by,  not  subject  to  foreign  attachment  -  479 

Bail — executor  may  hold  to  -  -  -  -  -  -  438 

executor  in  general  not  held  to  -  -      ■       -  -       .     -  467 

in  what  case  he  may  be        -  -  -  -  -    ib. 

Bail-bond — action  by  executor  of  assignee  of  -  -158.161.432.438 

Bank — the  registering  of  probate  at  the        ...  -      255,  256 

transfer  of  stock  at  the         -  -  -  -  -  "  ^^^ 

of  stock  specifically  bequeathed     -  -  -  -    ib. 

subject  to  action  on  refusal  to  make  a  transfer         -  -  -    ib. 

Bank  notes  - 234,  235 

Banker's  checks       ...-----  235 
Bankrupt— next  of  kin  -----  93.103,104 

executor 120.486,487,488 

commissioijers  of,  cannot  seize  the  effects  of  testator 

134.  488 

devastavit  may  be  proved  under  a  commission  of  429.  488 

legatee  ------      315.  321 

recerver  appointed  in  case  an  executor  becomes  -  -  488 

executor  carrying  on  trade  pursuant  to  directions  in  the  will 
may  be  a-  -  -  -  -  ■  "  486 

executor  defendant  at  law  -----  467 

and  another  person  both  claiming  to  be  executor  of  a 
creditor  of  the  bankrupt,  order  of  the  court  thereupon  488 
an  executor  may  prove  a  debt  under  a  commission  of    -  -  452 

commission  of,  of  testator  superseded  -  -  -    ib. 

an  executor  of,  incapable  of  taking  out  a  commission  of  bank- 
rupt for  a  debt  due  to  the  testator       -  "  "  "    '^* 
certificate  of,  an  executor  may  sign        -            -            -  -  452 

where  bankrupt  was  petitioning  creditor's  executor, 
choose  himself  assignee,  and  signed  his  own  certi- 
ficate        -  -       .     -      ■    .  -  -       452,  453 


INDEX.  549 

Bankrupt — coniinued.  Page 

certificate  of,  cannot  be  signed  by  executor  as  such,  and  also  in 
his  own  right  ._....  453 

estate  of,  paying  ten  shillings  in  the  pound,  his  executor  enti- 
,    ■  tied  to  the  allowance  -  -  -  -  -    ib. 

Bargain  and  sale  without  enrolment  no  revocation  of  a  will  -  -     20 

Bastard         --.....  107.  386,  387 

Beds  fastened  to  the  ceiling  ._....  198 

Bees  -...-._  148,  149.   193 

Benefice — purchase  for  a  son  of  a,  an  advancement  -    ,        -  .  376 

Birds  -  -  -  -  -  -  -  -  -  147 

Bill  of  exchange      .--.-.  2'35.  285,  286 

interest  on  ......  337 

indorsed  to  executor  .....  439 

Bishop         -  -  -  -  -  -  -  -  -  201 

probate  of  the  will  of  -----  53.  67 

grant  of  administration  of  the  effects  of         -  -  -  -     94 

Bona  notubilia  ....  51,  ei  sey.  76.  94.  121,  122 

peritura  -  -  ...  .  -     96.247.404.  427 

Bond  -  -  -  157.216.234.252.278.281.432.4-37.463 

voluntary  --  -  -  -  -  -  -  283 

payable  in  preference  to  legacies,       ....    ib. 

on  an  usurious  contract  -  -  -  -  -  -     ib. 

ex  turpi  causa  ....'.-.  283 

joint  and  several  ......      283,  284 

joint  only  -  ---  -..-  -  -  284 

assignment  of,  by  testator         -  -      .      -  -  -  -  154 

bequeathed  to  a  feme  covert      -  -  -  -  -  -  226 

delivery  of,  by  one  of  two  executors  of  obligee  in  satisfaction  of  his 
ow^n  debt       -  -  -  --  -  -  -  360 

in  spiritual  court  by  parties  in  distribution        -  -  -  -  372 

money  due  on,  taken  by  executor  not  subject  to  foreign  attachment         478 
loss  of,  by  'executor       -  -  -  -  -  -  -  426" 

interest  on,  not  recoverable  beyond  the  penalty  ...  287 

Book-debt     -  -  -  -  -  -  -  -  -    ih. 

interest  on-------  287 

Borough  English  lands  not  to  be  brought  into  hotchpot       ...  381 
Brewing  vessels      -  -  -  ...  -  .  -  198 

Brother ^8,  89,  90.  384 

of  the  half-blood       -'  ...  -  -  -'  -     91 

Caroome      .-..-----  152 

Carrier — goods  delivered  to  -  -  -  -  -  -154 

Carrots         -  -  -  -  -  -  -  -       150.  194 

Cattle 147 

young  of--------  166 

Caveat         -  -  -  -  -  -     72,  73.  95.  123.  126,  127 

against  seamap's  wills  -  -  -  -  -  -    61 

Certiorari     -  -  -  .....  2C4 


550  INDEX. 

Page 

Chamberlain  of  London        ..-.-.      202.  221 

where  executor  mxist  give  security  to,  to  account 

upon  oath  for  an  outstanding  debt  -  -  254 

Charity — legacy  to  .._...-  340 

Chattels— real  -  .        \    .  .  .  .  -  -  139 

personal  ...._.-  146 

changed  into  chattels  real  .  .  -  -  156 

and  vice  versa       -  -  -  -  -  -     ib. 

Child  posthumous  -  ■  -  -  -  -  -       374.  390 

Children      -  -  -  -  ' 370 

legal  representatives  of      -  -  -  -  -       371.  373 

children's  children  _....-  370 

Chimney-pieces       -  -  -  -  -  -  -  -  197 

Chose  in  action       -  .  -  -      IQG.  157,  et  seq.  21G.  431,  et  seq. 

Citation — of  executor  to  prove  the  will        -  -  -  -     43.  65,  93 

of  widow  or  next  of  kin  to  contest  a  nuncupative  will     -  -     59 

of  next  of  kin  to  accept  or  refuse  administration,  or  show  cause 

why  it  should  not  be  granted  to  a  creditor       -  -       104.  122 

to  produce  an  inventory  ....  -  249 

suit  by     -  -  -  -  -  -    78.  129,  130,  131 

by  executor  or  administrator  of  legatees,  or  next  of  kin,  on  pass- 
ing his  accounts  in  the  spiritual  court  ...  494 
Clock  cases               ....._--  198 

Clover  -....-..       149,  150 

Coat  armour  -•-  -  -  -  -  -  -  199 

Codicil — definition  of-.-  -  -  -  -  -6 

how  annexed  -  -  -  -  -  -  -    ih. 

relative  to  land       -  -  -  -  -  -  -6,  7 

to  personal  estate  .....    jj. 

written       -  -  -  -  -  -  -  -57 

nuncupative  -  -  .  .  .  -  -      7 

how  far  it  operates     -  -  -  -  -    ib, 

revocation  of  will  by  -  -  -  -  -  -     15 

Co-executors — take  a  residue  as  joint  tenants  ....  363 

power  of,  of  selling  land       -  -  -  -  -     ib. 

whether  it  may  or  may  not  be  exercised  by  survi- 
vor at  law,  it  shall  be  enforced  in  equity  -    ib. 
action  by      -            -            -            -            -            -       445,  446 

where  an  infant  is  co-executor  ....  446 

regarded  as  one  person         -  -  -  445,  446 

Co-heiresses  must  bring  advancement  out  of  personal  estate  into  hotchpot  -  379 
Coffin,  shroud,  &c.  ......_  155 

Collar  of  SS.  -  -  - 199 

Collaterals — among,  no  representation  admitted  after  intestate's  brothers' 

and  sisters'  children  .  -  .  .  372.  381,  382 

College — head  and  fellpws  of  -----  -  201 

of  physicians,  president  of  -  -  -  -  -  202 

Colligendum — grant  of  letters  ac?      -  -  -  -  -  43.  107 


INDEX.  551 

Colligendum — continued.  Page 

effect  thereof  -  -  -  -  -  -107 

collecting  the  effects  by  executor      ...  -  254 

person  appointed  by  court  of  equity  to  collect  -  -  408 

receiver  appointed  in  'case  of  bankrupt  executor         -  -  488 

Commissary  -  -  -  -  -  -  -    44.  66.  74 

Commission — to  bishop  or  archbishop  in  England  -      *       -  -  65.  94 

in  regard  to  seamen's  wills   -  -  -  -  -     63 

in  regard  to  administration  to  seamen  -  -  -  111 

of  appraisement  _  .  -  .  73.  252,  253 

of  review       -  -  -'-  -  -  -74 

in  the  army,  purchase  for  son  of,  an  advancement     -  -  377 

Commons     .-----..-  139 

Condition — interest  vested  in  executor  by   -  -  -  -  -  164 

Consanguinity — ^^lineal  -  --  -  -  -  -87 

how  calculated  -  -  -  -  87,  88.  382 

collateral    -  -  -  -  -  -  -88 

how  calculated   -  -  -  -   89,  90.  382 

Contingent  interests  .._...       212,213 

Contribution-money  -  -  -  -  -  -  -  221 

Conversion  of  assets  into,the  three  per  cents  .  -  -  -  319 

Coppers       -  -        ■ 197,  198 

Copy — of  will  -  -  --  -  -  -  -71 

of  probate     -  -  -  -  -  -  -  77,  78 

of  ledger-book  -  -  -  -  -  -  -78 

Copyhold     -  -  -  -  -  -  -  -  -  215 

devise  of-  -  -  -  -  -  -  -32 

fine  for  admittance  to  a-  -  -  -  -  -  436 

for  lives  ......       179,  180 

mortgage  of  -----  -       186,  187 

rents,  executor  cannot  distrain  for  ....  452 

Copyholder,  lease  granted  by  -----  -  180 

Corn  growing  -  -  -  150.  159. 194.  203.  204,  205,  206.  218,  219 

Cornage — tenure  by  -,-  -  -  -  -  -  191 

Corodies       -  -  -  -  -  -  -  --  139 

Corporation — aggregate      .-  -  -  -  .  ,  -         33.  201 

sole  .....  33.  201,  202 

Costs — in  what  actions  executor  plaintiff  at  law  shall  not  pay         -  -  439 

when  not  on  a  writ  or  error  -  -  -  -  -    ib. 

not  generally  on  a  discontinuance  -  -  -        440,  441 

nor  for  not  proceeding  to  trial  according  to  notice  -  -    ib. 

nor  on  a  judgment  as  in  case  of  a  nonsuit  ...  440 

in  what  actions  executor  plaintiff  at  law  shall  pay  -  -        439,440 

when  on  a  wfit  of  error    -  -        "    -  -  -  -  440 

on  a  judgment  of  non-pros  .....     /i. 

when  on  a  discontinuance  -  ,  -  -  -  -     ib. 

when  for  not  proceeding  to  trial  according  to  notice         -  -     ib. 

effect  of  defendant's  paying  money  into  court  in  an  action  by  an 
executor  in  regard  to  tlie  costs  ....    j^. 


552 


FNDEX. 


Costs — in  what  actions  executor  shall  pay — coniinued.  Page 

executor  or  administrator  of  an  attorney,  need  not  deliver  a  bill  of, 
before  commencing  an  action  for  -  -  -  -  441 

the  bill  in  that  case  not  taxed  in  C.  B.         -  -  -  -     ih. 

the  bill  in  that  case  may  be  taxed  in  B.  R.  -  -  -  -  441 

on  above  a  sixth  part  of  such  bill  being  taken  off,  executor 
not  liable  to  the  costs        -  -  -  -  -    ih. 

defendant  executor  when  liable  to,  at  law    -  -  -       467,  468 

when  not  -  -  .  .  _  4G8 

when  bankrupt  execntor,   defendant  not   dis- 
charged by  his  certificate  from  -  -    ih. 
when  liable  to  in  equity             _             .             .  483 
when  not           -             -             -             -             -    ib. 

executor  entitled  to,  in  the  spiritual  court    -  -  -  -  496 

when  party  praying  an  account  in  that  court  liable  to  -  -     ih. 

Covenant     -  ...  -  -  278. 284, 285 

executor  entitled  to  the  benefit  of  _  .  -  168 

to  perform  a  personal  thing  ...  158.  432.  437 

touching  the  realty  -  -  .  ..  158.163.432 

to  lay  money  out  in  land  -  .  .  -8. 181.  392 

on  marriage  to  settle  land  -  -  _  .       4I8, 419 

by  mortgagor  to  pay  the  mortgage  money  ...  185 

where  legacy  shall  be  in  satisfaction  of   -  -  -  -  338 

interest  on  demands  arising  from  ...       286,  287 

Court— baron  .  -  -  -  -  -  -  50.  80 

mayor's        -  -  -  -  -  -  -  .50 

bishop's       -  -  -  -  -  -  -  -51 

prerogative  -  -  -  -  -  -  -  -    ih. 

of  great  sessions  in  Scotland  -  -  -  -  -    71 

spiritual  in  Ireland  -  -  -  -  -  -    ih. 

in  the  East  or  West  Indies  -  -  .  .    ij. 

of  the  arch-deacon  ------  73,  74 

of  arches     -  -  -  -  -  -  -  74,  75 

of  delegates  -  -     .        -  -  -  -  -     ib. 

of  pie  poudre  .......  264 

of  conscience  -  -  •.  -  -  .       436.466 

of  orphanage  in  the  city  of  London  -  -  -  -  254 

in  cities  or  towns  corporate  having  power  by  charter  or  prescription 
to  hold  plea  of  debt  -  -  -  -  -  -  263 

temporal,  to  judge  of  the  sufficiency  of  cause  of  repealing  letters  of 

administration      -  -  ...  -  .  -123 

proctor's  fees  to  be  sued  for  in  the  temporal  .  .  _  497 

Cousin  german         -  -  -  -  -  -  -  -89 

second  -  -  -  -  -  -  -  -    ib. 

Creditor 104.  113.  122.  129.  192.  416 

several  applying  for  administration  ....  106 

in  respect  to,  several  administrators  regarded  as  one  person       106, 107 

marshalling  assets  in  favour  of       ....  -  417 

Cucumbers  -  -  -  -  -  -  --  150 


INDEX.  553 

Page 
Cumulative  legacies  ....  ^  -  -  334 

Curtesy — tenant  by  the        -  -  -  -  -  -  -  206 

Custom — in  regard  to  probate  of  wills         -  -  -  -  -    50 

heir  looms  by-------  200 

for  corporation  sole  to  take  goods  and  chattels  in  succession        -  202 

of  London  ..--.--  373 

distribution  by  .  -  -  -  388,  et  seq. 

in  regard  to  widow's  jewels    -  -  -  -  230 

in  regard  to  simple  contract  debts        .  -  -  282 

where  a  freeman  dies  leaving  an  orphan  within  age  and 

unmarried,  in  regard  to  an  inventory  and  account    -  254 
in  regard  to  apprentices  when  the  master  dies  -  476 

foreign    attachment,     executors    and    administrators 
within  the  custom  of,  in  what  cases,  in  what  not    -  478 

of  York    -  -     • -  373 

distribution  by     -  -  -  -  -  -  400 

of  Wales 403 

Cyder-mill '      -  -  -  -  198 

Damages      i.  -------  284 

recovered  by  an  executor  not  subject  to  foreign  attachment      478,  479 
Daughter  of  an  aunt  -  -  -  -  -         ,    -  -  385 

Dead  man's  part      -  -  -  -  -  -'-  -  389 

Dean  and  chapter     -  -  -  -  -  -  -  67.  94.  201 

Debts — executor  how  far  liable  for  ...  -      459.  463 

payment  of  by  executor        -----        47.  258 

in  what  order  -  -  -      258.  262 

consequenceof  his  not  paying  them  in  order  -  -     *      -258 

due  to  the  crown  by  record  -  _  -  -       259,  260 

by  specialty         -----  259 

other  due  to  the  crown     -  -  -  -  260 

assigned  to  the  king        -  -  -  -  261 

certain  hy  statute    -  -  -  -  -  -       261,  262 

of  record  in  general  -----       262.  459 

judgments  as  distinguished  from  statutes  and  recognizances      262.  459 

judgment  against  executor  -  -  -  265, 266,  267 

writ  of  error  by  executor  on  judgment        -  -  -        267,268 

effect  thereof  ------  268 

decree  in  equity       -----  269,  270,  271 

execTitor  protected  in  his  obedience  thereto,  -  -       270,271 

recognizance  -  -  -    .        "  "  ^^1'  ^'^^^  ^^^ 

statute  merchant      -----  272,273.459 

statute  staple  .-.---      273.  459 

recognizance  in  the  nature  of  a  statute  staple  -  -      274,  275 

statute  and  recognizance  not  yet  due  -  -  -  -  275 

contingent  -  -  -  -  270 

joint  and  several    -  -  -  -  277 

joint  only  -  -  "  '    *^' 


554  •  iNi)Ex. 

Debts — continued.  Page 

recognizance  not  enrolled    ------  277 

statute  not  regularly  taken  -  -  -  -  -  -    ib. 

other  inferior  of  record        -----       278.  459 

by  specialty  -  -  -  -  -  -       278.281 

rent  -  -  -  -  -  -  -     278,  et  seq 

by  specially  payable  at  a  future  day  .  .  -  -  281 

contingent       -  -  -  -  282.  321,  322- 

voluntary  bond         .-.----  283 

bond  on  an  usurious  contract  -  ,,  -  -  -      283.  126 

ex  turpi  causa     -  -    '         -  -  -  -  "  283 

joint  and  several  -  -  -  -  -  -    ib. 

covenant      -  -  -  -  -  -  -        284,  285 

articles  of  agreement  -  -  -  -  -  -    ib. 

simple  contract        ------       285,  286 

interest  of-  -  -  -.-  -  -  -  286 

barred  by  statute  of  limitations  not  revived  by  the  will        -  -  288 

payment  out  of  their  legal  order       _  -  -  -        258.  424 

creditor's  gaining  priority  by  legal  process  .  -  -  288 

by  equitable  process       -  -       289, 290 

executor's  povrer  of  preferring  one  creditor  of  equal  degree  to  ano- 
ther -  -  -  -  -  -  -  289,  et  seq. 

not  controlled  in  the  exercise  of  it  in  equity    -  -  -  291 

his  right  of  giving  such  preference  not  divested  by  a  mere  de- 
mand -  -  -  -  -  -  -     ib. 

how  bound  in  conscience  to  pay,  of  equal  degree      -       291,  292 
may  pay  an  inferior  debt  before  a  superior  of  which  he  has  no 
notice,  after  a  reasonable  time         -  •  -  -       292,  293 

not  if  he  has  notice      .  -  -  -  -  293 

,  executor  paying  a,  out  of  his  own  purse         -  -       238,  239 

has  the  same  equity  as  a  creditor  against 
legatees  .  -  -  -  342 

if  executor  compound  he  shall  not  have  the  benefit  of  -  481 

appearing  after  the  payment  of  legacies  -  -  342 

due  to  executor  -  -  -  i  -  -        238,  239 

may  be  retained  by  him  -  -  -  -  -  295 

in  what  cases  -  -    295,  et  seq. 

on  what  principle       -  -  -  295 

retainer  for,  by  husband  of  executrix  -  -  -  359 

when  the  debt  was  due  to  him,  or  to  the  wife  before 

marriage  -  -  -  -  -    ib. 

shall  not  retain  in  prejudice  of  his  co-executor    -  361 

devise  of  land  for  payment  of  -  -  -       411.418 

when  lands  shall  be  assets  only  for  the  payment  of      -  -  416 

payment  of,  by  executor  without  notice  of  the  revocation  of 

the  will      -  -  -  -  -  -  78,79 

payment  of,  by  limited  administrator  _  .  .  404 

retainer  for,  by  limited  administrator  -  .  -  405 

payment  of,  by  administrator  under  a  void  administration       -  132 


INDEX.  555 

Debts — continued.  Page 

when  a  legacy  is  in  satisfaction  of  a,  when  not      -  -        336.  338 

action  of,   on  a  judgment  of  assets  quando  acciderent  suggesting  a 

devastavit  ...-.--  470 

executor  de  son  tort  as  against  creditors  may  pay    -  -  -  3G4 

as   against  the  rightful  representative  cannot 
plead  payment  of      -  -  -  -  365 

on  general  issue  may  give  in  evidence  such 

payment,  in  what  cases         .  .  -     {b. 

effect  thereof         _  .  -  -     {b. 

when  it  is  of  no  avail         ...  366 

in  general  cannot  retain  ...     ib, 

under  the  statute  may  -  -  -    ib. 

collectors  of,  where  appointed  by  court  of  equity    ...  408 

due  to  the  testator  separate  .....  248 

doubtful  -  -  -  -  -    ib. 

desperate  -  -  -  -  -    ib. 

bona  notahilia      ...  -  54.  56 

by  specialty,  or  simple  contract,  how  distin- 
guished    -  -  -  -  -     55 

payment  of,  to  executor,  what  shall  be       -  -  -  -  425 

under  a  forged  will  -  -  76,  77 

under  probate  of  a  supposed  will  of  a  living 
person    -  ...  .  -     77 

to  administrator,  under  a  void  administration  -  130 

where  an  executor  delays  the  receipt  of        -  -  -       425,  426 

executor  may  call  in  a,  though  bearing  interest,  in  what  case  -  428 

where  executor  compounds  or  releases        -  -  47.481,482 

release  of  by  one  of  several  co-executors     ...       359,360 
receipt  of,  by  limited  administrator  -  -  -  -  404 

release  of,  by  limited  administrator      .        -  ...  406 

by  one  of  joint  administrators      ...  -408 

executor's  assent  to  a  release  by  will  of      -  -  -  -  308 

due  from  executor  when  regarded  as  a  specific  bequest  to  him        -  350 
where  not  -  -  -  -       3 19,  350 

Ane  hoxa  execwior  durante  minoritate  ...       350,351 

from  husband  of  executrix        .....  359 

where  one  of  several  executors  is  indebted  to  testator,  and  dies,  the 

surviving  executors  cannot  sue  his  representatives  for  the  -  348 

action  of,  by  executor  for.arrears  of  rent      ....  450 

by  tenant  pur  auter  vie,  his  executors  and  administrators, 
after  the  death  of  cestui  que  vie,  for  arrears  incurred  in 
his  lifetime        -  -  -  -  -  -     ib. 

in  what  cases  executor  at  common  law  may  have  an  ac- 
tion of,  for  arrears  of  rent  ...  -  451 
by  an  executor  suggesting  a  devastavit  in  the  lifetime  of 
his  testator  on  a  judgment  recovered  by  sueh  testator 
against  an  executor       ....        433. 473 

executor  a  creditor,  may  sue  his  co-executors  -         *  -  -  298 

F 


556  INDEX. 

Debts — coJiiinued.  Page 

executor  a  creditor,  may  sue  liis  co-executors  or  the  heir,  where  the 
heir  is  bound       .-----_  298 

executor  may  prove  a,  under  a  commission  of  bankrupt      -  -  452 

.  due  from  executor  in  his  private  character  not  payable  out  of  the  as- 

sets -  -  -  -  -  -  -        134,  135 

due  to  the  wife  before  marriage      -----  122 

Debtor — executor's  interest  in  the  person  of  -  -  -  -  151 

administration  granted  to  _  -  .  -  -  128 

Deceit — action  of,  by  executor  ...  -  159.  435,  436 

Decree— in  equity  -  -  -  -  -  2G9, 270,  271 

in  the  administration  of  assets  equivalent  to  a  judgment  at  law  270. 290 
notice  thereof         -------  270 

merely  to  account  -  -  -  -  -  -271 

analogous   to    judgment    quod  comptitet    interlocutory 

judgmentatlaw         -  -  -  271.290,291 

cannot  be  pleaded,  or  given  in  evidence  at  law      -  -  -  270 

yet  executor  shall  be  protected  in  his  obedience  thereto    -       270.  290 

Deeds — writings  and  securities  relative  to  personal  estate    -  154.  254,  255 

relative  to  land        -  -  -       191,  192 

to  land  sold  on  condition     -  -     ib. 

Deer 141.  147.  149.  192 

Delegates — court  of-  -  -  -  -  -  -74 

Detinue — action  of,  by  executor       ------  434 

Devastavit— by  acts  of  abuse  -  -  246.  268.  283.  307.  341.  344 

of  negligence  -  .  -  .    426,  et  seq. 

effect  of 463,  466 

what  shall  not  amount  to        -  -        267,  268,  269.  428,  429 

by  one  of  several  co-executors  -  .  -        430,  472 

by  husband  where  executrix  marries  after  testator's  death       -  358, 

359.  430.  471 
by  executrix  before  marriage^  -  -         .  -  -        359.  430 

by  executrix's  marrying  testator's  debtor         ...  359 
executor  of  executor  answerable  for,  by  the  latter       -       430.  473 
executor  de  son  tort  chargeable  for       -  -  .  _  474 

executor  of  executor  de  son  tort  chargeable  for  the,  of  the  •  lat- 
ter   -  -  -  .     .       -  -  -  -    ib. 

executor  de  son  tort  of  executor  de  son  tort  not  for  the,   of  the 
latter  -  -  -  -  -  -  -    ib. 

administrator  durante  minoritate  liable  for,  to  the  executor  on 
his  coming  of  age     ------  475 

not  after  that  period  to  a  creditor  -  -  -  /  ib. 

executor  may  be  held  to  bail  in  case  of  -  -  -  467 

may  be  proved  under  commission  of  bankrupt  executor  -  429 

return  of,  by  the  sheriff  -  ...  -  467 

Devise — of  lands  to  be  sold  ------  412 

by  a  person  not  executor  .  .  -     ib. 

by  executor  in  conjunction  with  other  persons  -     ib. 
by  executor  for  payment  of  debts  and  legacies  -  413 


INDEX.     .  557 

Page 

Devisee — where  lands  are  devised  by  tenant  in  fee-simple  -  -  -  411 

of  estate  'ptr  auter  vie         -----  -    ib. 

of  copyhold  -.-.._       411,412 

of  land,  what  chattels  go  to  -  .  .  -  -203 

entitled  to  emblements    -       ,     -  -  -  -    ib. 

of  personal  estate  entitled  to  emblements  in  preference  to,  of 
land       -  -  -  -  -  -  -  -  204 

specialty  creditor  may  resort  against  heir,  and  without  suing  ex- 
ecutor of  the  debtor       -  -  -  -  -  -411 

Disseisor — of  tenant  for  life  -  '  -  -  -  -  -  206 

Distress — goods  taken  by---  -  -  -  -  -154 

executor's  right  of,  in  what  cases  _  _■  .   450,  et  seq. 

of  executor  of  executor    -  -  -  -  452 

for  rent  against  executor  of  tenant  for  life,  or  for  years   -  -.476 

Distribution — of  deceased's  effects  in  pious  uses     -  -  .         81.107 

spiritual  court  formerly  attempted  to  enforce  -  -  369 

under  the  statute        -  -  -  -  -  -    ib. 

purview  thereof  -  -  -  .  .  370 

provisions  of  the  same  ...       370,  373 

when  to  be  made  .  .  .  _  .  372 

where  intestate  left  wife  and  children,  or  representatives  of 

children  .  -  .  .  .       373,  374 

where  intestate  left  one  child  ...  374 

where  some  of  the  intestate's  children  are  living,  and  some 

dead,  each  of  whom  has  left  children     -  -  .  375 

advancement  within  the  statute  ...  376 

of  bringing  into  hotchpot  ....     ib. 

what  shall  not  be  such  advancement        -  _  .  380 

borough  English  lands  descended  not  -  -381 

where  widow  and  no  children,  nor  legal  representatives 

of  children         -  -  -  .  .       381,382 

where  children,  and  no  widow  -  .  .  392 

where  neither  widow  nor  children  -  -  -    ib. 

among  next  of  kin  -  -  -  -  -    ib. 

where  any  of  the  children  die  intestate  withont  wife  or 
issue,  leaving  a  father  -  -  -  -     ib. 

where  any  of  the  children  die  intestate  without  wife  or 

children,  leaving  a  mother  ...     {b. 

where  a  child  dies  intestate  and  without  issue,  leav- 
ing a  wife,  brothers,  and  sisters,  or  children  of  a  de- 
ceased brother  or  sister,  and  a  mother  -  -  383 
where  a  child  dies  intestate  and  without  issue,  leaving 
neither  brother  nor  sister,  nor  children  of  a  brother 
or  sister,  but  leaving  a  mother  -  .  .  383 
how  far  representation  among  collaterals  is  admitird 

382,  383 
where  there  are  frrnudratlicr  ami  hrotlier  -  -  281 


558  INDEX. 

Distribution — under  the  statute — continued.  Page 

among  next  of  kin — continued. 

whore  there  arc  grandfather  and  uncle  -     ib. 

where  there  arc  grandfather  by  the  father's  side 

and  grandmother  by  the  mother's       -  -  385 

where  there  are  uncles  and  nephews,  aunts  and 
nieces  -  -  -  -  -    ib. 

where  grand-daughter  of  a  sister,  and  daugh- 
■  ter  of  an  aunt  -  -  -  -    ib. 

distributive  share  vested  on  the  death  of  the 
intestate        -----  386 

statute  in  the  nature  of  a  legislative  will  -    ib. 

affinity,  except  in  the  case  of  wife,  no  title  to  a         -  -    ib. 

of  the  effects  of  bastard  intestate,  without  wife  or  child     386,  387 
according  to  the  law  of  the  country  where  intestate  was  resi- 
dent -  -  -  -  -  -  -  387 

may  be  enforced  in  equity     -----  480 

in  the  spiritual  court  -  -       489,  495 

by  the  custom  of  London     -----  388 

where  widow  and  children  -  -  -        389,  390 

•where  only  widow  or  only  children  -  389,  390,  391 

where  neither  widow,  nor  child,  nor  representative  of  a 

child 389,  391 

of  dead  man's  part  -  -  •         -  -  -  389 

posthumous  child  entitled  to  -  -  -  -  390 

grand-children  not  ....        390,  391 

custom  attaches,  though  freeman  neither  resided,  nor  died, 

nor  left  effects  within  the  city  -  -  -        391,  402 

children  entitled  to,  though  born  out  of  the  city     -  -394 

widow's  chamber  -  -  -  -       389,  391 

when  barred  of  her  customary  share       -  -  392 

where  the  orphanage  share  vests,  when  not  -  -  393 

when  it  survives  -  -  -  -  -    ib. 

when  not  -  -  -      '      -  -  -    ib. 

orphanage  part  where  there  is  only  one  child        -  -    ib. 

advancement  by  the  custom  .  -  -  -  394 

bringing  the  same  into  hotchpot  -  -  _    ib. 

in  what  cases,  and  how  brought  in    -  -  -  395 

where  advancement  exceeds  the  share  by  the  custom    -    ib.- 

nature  of  such  advancement,  complete  or  partial        -396 

must  arise  from  personal  estate  only  -  -    ib. 

evidente  of  the  same  -  .  -  -  397 

different  cases  of  advancement         -  -  -  398 

nature  of  the  interest  in  an  orphanage  part  -  -  399 

how  claim  to  the  same  may  be  waived      -  -      399,  400 

release  thereof  by  husband  of  freeman's  daughter  an  infant, 

on  his  covenant  to  release  -  -  -  -  399 

effect  thereof  -  -  .  -      399,  400 


INDEX.  559 

Distribution — by  the  custom  of  London — continued.  .       Page 

mortgage  of  an  inheritance  to  a  citizen  devisable  according 
to  the  custom     -  -  -  -  -  -  187 

by  the  custom  of  York  -  -  -  -  -  400 

widow'«  chambers  and  ornaments  -  -       400,  401 

when  child's  filial  portion  is  vested  ...  401 

advancement  by  the  custom  ...  -     ih, 

may  arise  out  of  the  real  estate  ...     ijj, 

heir  at  common  law  inheriting  land  in  fee  or  in  tail  can 
claim  no  filial  portion  -  -  -  -    ib. 

where  intestate  leaves  a  widow  and  three  sons     -  -  403 

such  custom  does  not  attach  where  intestate  not  resident 
in  the  province  at  his  death       ....  402 

in  respect  of  such  custom,  immaterial  where  his  estate  is 

situated  _..._.  402 

where  custom  of  London  shall  controul  that  of     -•  -    ih, 

customs  of  London  and  York  in  the  main  agree        -      402,  403 

by  the  custom  of  Wales       ....  -  403 

Distringas — niiper  vice  comiiem  sued  out  by  administrator  de  bonis  nan         -  449 
Divorce  for  adultery  a  mensd  et  thora,  how  it  operates  in  regard  to  the  cus- 
tom of  London  .... 

Dogs  -.-..-. 

Domicil  of  intestate  .  .  .  .  . 

Donatio  mortis  causa,  definition  of    - 

what  shall  constitute 

what  not  .... 

incapable  of  being  bills  of  exchange 

promissory  notes     - 
checks  on  bankers 
simple  contract  debts 
arrears  of  rent 
query  whether  money  due  on  mortgage  can  be  the  sub- 
ject of  -  -  1  . 
not  proved  with  the  will 
executor's  assent  to,  unnecessary 
not  good  against  creditors 
Doors            -            -            ... 
Dower,  tenant  in      - 

executor  of  -  -  -  - 

Duly  on  legacies      -  -  - 

Ecclesiastical  court — remedies  against  executor  and  administrator  in  4Rf),  et  seq. 

what  evidence  shall  be  admitted  in     -  -  -  191 

in  what  cases  it  has  concurrent  jurisdiction  willi  the 

court  of  chancery     .  -  -  .  -  489 

in  what  not     ..----  590 

cannot  comprd  delUor  of  intestate  to  jiuy  his  debt  into 

court  ......  491 

bond  taken  for  a  bgncy  cannol  lie  fMifdrcrd  in  -  491 


- 

393 

- 

148 

- 

387 

- 

233 

233. 

237 

235, 

236 

- 

235 

. 

ib. 

- 

ib. 

. 

236 

- 

ib. 

sub- 

- 

ib. 

- 

ib. 

- 

ib. 

- 

237 

- 

197 

- 

217 

205. 

207 

. 

329 

560  INDEX. 

Ecclesiastical  court — continued.  Page 

proctqr's  fees  cannot  be  sued  for  in  -  -  497 

Education — money  expended  for  a  child's,  no  -advancement  -      380,  496 

Ejectment,  action  of — by  executor  -  -  -  -      158.  234 

for  an  ouster  of  the  testator,  though  seized  in  fee         434 

by  husband  for  his  wife's  term  .  -  -  215 

Election — when  executor  may  claim  by,  when  not  -  -       174,  175 

how  a  specific  chattel  may  become  an  executor's  own  by  -  238 

Elegit— estate  by 139.  212 

will  lie  against  an  executor  on  a  devastavit  returned  -  -  470 

Emblements—         -  -  149,  150.  194.  203,  204,  205.  208.  218,  219 

advantage  of,  extended  to  the  parochial  clergy  -  -  208 

Entry — power  of,  descends  to  the  heir         .  .  -  -  .  180 

Equity — remedies  for  executors  and  administrators  in  -  -  454,  et  seq. 

against  executors  and  administrators  in   .479,  et  seq.  489,  490 

execntor  cannot  ptead  decree  in,  yet  is  protected  in  his  obedience 

thereto    ...---  270,  271.  290 

will  not  interpose  in  favour  of  one  creditor,  where  executor  has 

confessed  judgment  to  another  .  _  -  -  291 

in  what  case  will  not  compel  a  creditor,  suing  both  at  law  and  in 
equity,  to  make  his  election       -  -  -  -  -  291 

executor  may  retain  for  his  debt  both  at  law  and  in  -  -  298 

will  not  suffer  him  to  pervert  such  privilege  to  the  purposes  of  fraud     ib. 
where  a  creditor  has  more  than  one  fund  to  resort  to,  and  an- 
other only-one,  what  will  require  -  .  -  -  420 
will  not  compel  the  executor  to  plead  the  statute  of  limitations  at 

law  in  favour  of  the  residuary  legatee  _  .  .  343 

executor  paying  a  debt  out  of  his  own  purse  has  the  same,  as  a 

creditor  against  legatees  .  .  -  .  .  342 

executor  trustee  for  a  legatee  in,  and  in  certain  cases  for  the  next 

of  kin  -  -  -  351.355.361.363.479,480.490,491 

administrator  a  trustee  in,  for  the  parties  in  distribution    -  -  480 

surviving  partner  in  trade  trustee  in,  for  the  representatives  of  the 
deceased  -  -  -  -  -  -       454,  455 

■  legacy  payable  at  a  future  time,  or  annuity,  may  be  secured  in     -  482 
will  secure  the  assets  in  case  the  execntor  becomes  bankrupt        -  488 
where  executor's  power  of  dividing  a  legacy  is  controlled  in        -  319 
where  not  .-.----  320 

win  compel  a  legatee  to  refund      -  -  -  -  322 

creditors  and  legatees  entitled  to  what,  where  mortgage  has  been  • 
paid  out  of  the  personal  estate  ....  285 

will  compel  surviving  or  mediate  executor  to  execute  a  power  of 
selling  land         -  -  -  -  -  -       363,  364 

where  the  interest  (5f  husband  and  wife  are  treated  as  distinct  in 

225,  226 

where  wife  is  entitled  to  gifts  to  her  separate  use  in        225,  226,  227 

where  not  ..-----  22.8 

where  wife  entitled  to  gifts  from  husband  in  -  -  -  227 

where  not  ------       227,  228 


- 

184. 

218 

- 

185. 

187 

. 

- 

185 

. 

- 

415 

- 

- 

ib. 

- 

415, 

416 

- 

- 

ib. 

267, 

,268. 

435 

INDEX.  561 

Equity — continued.  _  Page 

where  husband  shall  be  trustee  for  wife  in  -  -  -  226 

where  wife  mortgagee  in  fee  is  a  trustee  in  -  -  .  -  223 

will  not  decree'  payment  of  wife's  legacy  to  husband  without  a 

settlement  -  -  -  -  -  -  -  321 

or  unless  wife  consent  in  court  -  -  -  -  -    ib. 

when  wife's  next  of  kin  trustees  for  husband's  representatives  in 

116.  217 
when  husband's  representatives  entitled  to  wife's  choses  in  action 

in -  -  222 

how  far  to  wife's  fortune  in  chancery  .  -  -  223 

money  covenanted  to  be  laid  out  in  land,  has  in,  all  the  qualities 

of  land 392 

release  of  orphanage  part  for  valuable  consideration  binding  in 

•  399,  400 
of  redemption        -  -  -  -  - 

foreclosure  of 
release  of     - 
of  redemption  of  mortgage  in  fee  -     '       - 

whether  legal  or  equitable  assets 
of  redemption  of  a  mortgage  for  a  term  of  years     - 
whether  legal  or  equitable  assets 
Error,  writ  of — by  executor  .  .  -  - 

query  whether  it  lies  to  reverse  testator's  attainder  of  high 
treason    -  -  -  -  -  -  -  435 

costs  on       -----  -      439,  440 

Escape,  action  for^by  executor      -  •  -        159.161.435.437,438 

against  sheriff's  executor         -  -  -  -  459 

Estovers      -  -  -  -•-  --  -  -  139 

Estray  -  -  - 210.  221 

produce  of  sale  of,  within  the  king's  manors  or.liberties        -  -  260 

Evidence — in  regard  to  a  legacy      ------  315 

in  regard  to  cumulative  legacies  -  -  334,  335,  336 

parol,  in  regard  to  residue  undisposed  of  -  -  -  355 

of  advancement  by  the  custom  of  London  -  -  -  397 

Excommunication  -  -  -  -  "  -        -  41.  65 

•  Excommunicated  persons     -  -  -  -  -  - 12.  33.  103 

Execution— where  land  and  damages,  or  a  deed  relative  to  land  and  dam- 
ages, are  recovered  -----  201 

where  on  a  judgment  recovered  by  two  executors,  they  pray 
different  writs  of       -  -  -  -  "  "447 

after  executor  is  come  of  age,  on  a  judgment  obtained  by  ad- 
ministrator durante  minoritUte  -  -  -       417,  448 
if  executor  or  administrator  die  after  suing  out,  but  before  the 
return  of  it,  administrator  dc  bonis  non  may  perfect  the  same 

448,   449 

wliere  defendant  dies  before  judgment  is  signed  -      260.  470 

how  tested      -  -  -  *  "  "  "  ^GO 

on  a  statute       -  -  -  "  "' ' 


562  inde;^. 

Execution — continued.  Page 

taken  out  on  a  statute,  a  judgment  remaining  unsatisfied  -  268 

wife's  term  may  be  taken  in,  for  husband's  debt  -  -  213 

not  after  his  death  in  case  the  wife  survive  -  -  215 

testator's  effects  cannot  be  taken  in,  for  executor's  debt      131,  135 
unless  he  convert  them  ta  his  own  use  ...   135 

or  consented  to  the  seizure        -  -  -  -  -    ih. 

Executor — definition  of-  -  -  -  -  -  -33 

derives  his  authority  from}  the  will  -  -  33.  4C.  75.  95.  101 

who  may  be       -  -  -  -  -  -  -     33 

the  king     -  -  ■.  .  .  -    ib. 

corporation  aggregate         ....     H), 

sole      -  -  -  -  -    ib. 

infant  -  -  ■-  -  -  -     34 

*  where  one  executor  is  an  infant  and  his  co-execu- 

tor not  -  -  -  -  -  102 

child  or  children  in  ventre  sa  mere  -  -     31 

feme  covert  with  husband's  consent  -  -     ib. 

although  she  be  an  irtfant        -  -  -     ib. 

alien  friend  -  -  -  -  -    ib. 

outlaw        -  -  -  -  -  -    ib. 

person  attainted      -  -  -  -  -    ib. 

villain-        -  -  -  -  -.  -     35 

party  insolvent       -  -  -  -        35.  311 

what  Roman  Catholics       -  -  -  -    35 

who  not  -  -  -  -  -  ■  -  -     ib. 

party  excommilnicated  till  absolution  -  -    ib, 

what  papists     -  -  -         -   - ,  -  -    ib. 

denier  for  the  second  time  of  the  Holy  Trinity  -    36 

of  the  Scriptures       -  -  -  -  -    ib. 

persons  not  having  qualified  for  offices  -  36,  37 

alien  enemy      -  *  -    .        -  -  -     36 

British  artificers  going  out  of  the  realm  to  exercise  or 

teach  their  trades  abroad,  or  so  .trading,  who  shall 

not  return  within  six  months  after  warning  -    ib. 

persons  under  mental  disability  -  -  -    37 

idiocy  ......     ib.» 

insanity        •  -  -  -  ^  -     ib. 

age  -  -  -  -  -  -    ib. 

disease  -  -  -  -  r  -    ib. 

intemperance  -  -  -  -  -    ib. 

persons  having  been  born-  blind  and  deaf      -  -    37 

appointment  of  -■  .         .  -  -  .  -    ib. 

expr"es,s  -  -  -  -  -    32 

implied  -  -  -  -  -    ib. 

absolute  -  -  -  -  -     ib. 

qualified  -  -  -     38.  100.  350,  351 

of  joint  executors  -  -  -  -    39 

considered  as  one  person        -  39.  243.  359 


INDEX.  563 

Executor — continued.  Page 

office  of,  not  assignable  -  -  -  -  -    43 

may  be  refused,  and  how  -  -         43,  44.  93.  348 

refusal  of,  by  a  bishop       -  -  -  -  -     44 

refusal  of,  in  person  -  -  -  -  -    ib. 

oath  thereupon  ...    £4. 

refusal  of,  by  proxy  -  -  -  -  -    ib. 

must  be  entire      -  -  .  .  44,  143,  279 

effect  of   -  -  -  -  -  -         44.  348 

when  refusal  may  be  retracted,  when  not  -        -  44.  93 

acceptance  of  the  office  of  -  -  -  -  -     44 

effect  thereof  -  -  -  -  -  -  -    ib. 

what  acts  are  an  acceptance  -  -  -  -  44,  45 

what  not         -  -  -  -  -  -  -    46 

administering  an  act  in  pais       -  -  -  .       115,116 

refusal  of  the  office  by  several  co-executors        -  -  46.  93 

by  some  and  not  by  others  -  -     46 

effect  thereof  -  -       46.  69.  351.  446 

by  surviving  executor  46.  69.  93.  118.  120 

death  of,  intestate  ....  114,115.135 

executor  of-  -  -  -  -  -  -118 

refusal  by      -  -  -  -  -  -    46 

minority  of   -  -  -  -  -  -  119 

executor  of  deceased  co-executor  -  -  -  -  118 

executor  of  surviving  co-executor  -  -  -  -    69 

surviving  co-executor  dying  intestate     -  -  69.118,119 

not  ascertained    -  -  -  -  -  -  -120 

concealed  -  -  -  -  -  -  -    ib. 

abroad    -  -  -  -  -  -  -  -    ib. 

of  a  person  domiciled  in  a  foreign  country  ...  457 

factor  of  goods  appointed  by  principal   ....    ib. 

becoming  bankrupt         -  .  .  -  .        120.  134 

being  attainted    -..----  134 

interest  of,  in  the  property  ...         133^  et  seq.  488 

his  constructive  possession  thereof    -  .  -        152,  153 

of  executrix  not  transferred  by  her  marriage  -  -  -  136 

order  in  which  the  different  species  of  such  property  are 

treated  ......       137!  138 

interest  of,  in  chattels  real  .....  139 

what  so  denominated  -  -  -  -    139,  e^  seq. 

when  they  relate  to  incorporeal  hereditaments  -       145,  146 

entry  of,  on  corporeal  hereditaments  necessary  -  -  145 

possession  of,  of  incorporeal  hereditaments  constructive        145,  146 

in  chattels  personal  -  -  -  -  146 

animate  ....  147 

vegetable        -  -  -  -  149 

corn  and  other  emblements  1 19,  150.  19d. 

201.  208 
trees  .  -  -  •  -  195 

G 


564  INDEX. 

Executor — possession  of,  in  chattels — continued.  .     Page 

inanimate        -        150,  151.  198.  200.  211 
in  property  in  the  public  funds  -   151 

in  the  avoidance  of  a  church  -  -     ib. 

in  the  person  of  a  debtor        -  -    ib. 

in  a  prisoner  -  -  -        •    -    ib. 

in  a  negro  servant      -  -  -  -    ib. 

in  an  apprentice  -  .  -  152 

in  literary  property     -  -  -    ib. 

in  a  patent  for  an  invention    -  -     ib. 

in  a  share  under  the  statute  of  distri- 
butions      -  -  .  -  386 
in  a  caroome              .            -  -  152 
allowance  to  bankrupt  survives  to  his    -            -            -  -    43 

when  the  interest  in  the  property  is  vested  in    -  -        152.  386 

when  not        -  -  - '  -  -  -  -  154 

interest  of,  in  deeds  and  writings  relative  to  personal  estate      -    ib. 

when  in  writings  relative  to  land       ...  192 

interest  of,  in  the  coffin,  &c.       -     '       -  -  -  -  155 

in  chattels  personal  changed  in  his  hands  into  chat- 
tels real  and  vice  versa         -  -  -  -  156 

of  executor  of  deceased  tenant  in  common   -  -  155 

of    deceased   partner   in   trade  or    hus- 
bandry -  -  -  -  155 

in  choses  in  action  where  the  cause  of  action  accrued 

before  the  testator's  death  -     157,  ct  seq. 

in  equitable  claims  subsisting  before  -  -  IGO 

in  choses  in  action,  when  the  cause  of  action  accrued 
after  -  -  -  -  -.  -    ib. 

in  equitable  claims  arising  after        -  -  -  161 

by  condition  -  -  -  -  -  164 

in  things  in  pledge    -  -  -  -       164.257 

'  by  remainder  -  -  -  -  -  1G5 

or  increase  -  -  -  -  -  166 

in  a  trade      -  -  -       .     -•  166,167.487 

by  assignment  -  -       '      -  -  -  167 

by  limitations  of  chattels  real  -  -  -  170 

of  legacies      -  -  -       171, 172 

of  interest 'arising  out  of  land  as  por- 
tions -  .  -        172,  173 
by  election    -            -            -            -  -  -  174 

right  of,  to  rent,  in  what  cases  -.--.-  179 
to  arrears  of  a  nomine  paenx      -  -  -  -  178 

to  bond  for  owelty  of  partition  -  -       180,  181 

to  money  covenanted  or  agreed  to  be  laid  out  in  land    -    ib. 
to  mortgages-    -  -  ^  -  -    140,  et  seq. 

to  tithes  set  out  in  testator's  lifetime    -  .  -  183 

how  effects  he  takes  as  such  may  become  his  own        -  -  238 

when  he  grains  a  settlement        -  -  -  -  -  146 


INDEX.  565 

Executor — continued.  Page 

interest  "of  married  woman  executrix       ...  2^1,  et  seq. 

of  joint  executors  -  ,      .       -  -  -  2-13 

in  case  of  death  vests  in  survivor         -    ih. 

of  limited  executors        -----  354 

of  executor  of    -  -  -  -  -         69.  243 

of  executor  of  surviving  co-executor      -  -  -     69 

tlie  burial  of  the  deceased  by      -  -  -  -  -245 

the  making  of  an  inventory  by  -  -  -  -  -  247 

•    may  sell  perishable  articles  before  making  an  inventory  -     ih. 

the  collecting  of  the  effects  by    -  -  -        164.  254,  e^sey. 

powers  of,  for  that  purpose     -  -  -  46.  254,  255 

the    registering  of   probate    at  the  bank  by,    and   transfer  of 

stock  -  -  -  -  -  -       255,  256 

sale  of  the  effects  by       -  -  -  -  -       256,  257 

mortgage  of  term  of  yeass  by     -  -  -  -  -  256 

assignment  of  mortgaged'  terms  by         -  -  -  -    ib. 

of  term  in  trust  to  attetid  the  inheritance  by  -  -  427 

recovering  the  property  by,  by  action  or  suit      -  -  -    ib. 

redeeming  pledges  by     .  -  -  -  164,165.257 

carrying  on  trade  by       -  -  -         166.480.486,487,488 

disposal  of  testator's  stock  in  trade  by   -  -  -  -  487 

where  he  shall  present  to  a  church  -  -  -  -  190 

payment  of  debts  by'      -  -      .      -  -  -  258,  e^  se^'. 

may  retain  his  own  debt  _  .  -  -  -  295 

compounding  debts  due  from  the  testator  -  -  -  481 

paying  such  debt  out  of  his  own  purse  -  -  -       342.  449 

where  he  so  pays  an  inferior  debt  before  a  superior  debt  -  429 

where  he  delays  payment  of  a  debt  due  from  testator   --  -  426 

not  bound  to  plead  the  statute  of  limitations        -  -  -  343 

compounding  or  releasing  debt?  due  to  the  testator         -       481,482 
how  far  liable  where  he  gives  a  receipt  for  part  of  a  debt       428,  429 
,    where  he  compounds  an  action  of  trover  for  tes- 
tator's goods  by  taking  a  bond  payable  at  a  fu- 
ture day  -  -  -  -  -.  429 

where  he  takes  a  bond  in  his  own  name  for  a  debt 
due  to  the  testator         -  .  -  -  425 

release  of  a  chose  in  action  by    -  .         -  -  -       424,  425 

where  he  delays  bringing  ain  action  so  as  not  to  save  the  statute 
of  limitations  -  -  -  -  -       426,  427 

executor  and  trustee,  former  distinction  between,  when  devises 
of  land  to  sell  -  -  -  -  -       412,413 

naked  power  of,  to  sell  land,  effect  thereof        -  412,413,414 

has  a  discretion  of  acting  for  the  benefit  of  the  estate    -       428,429 
may  call  in  a  debt  though  bearing  interest,  in  what  case  -  428 

submission  to  arbitration  I)y       -  -  -  -  *  '1^5 

cannot  bequeath  tlie  assets         -----  135 

cannot  waive  a  term  for  years    -  ■  -  -  -  M.j 

unless  where  there  are  not  assets  to  pay  tiic  rent        -       143,111 


566  INDEX. 

Executor — continued.  Page 

what  he  is  to  do  where  there  are  assets  to  pay  rent,  but  not  for 
the  whole  term  -  -  -  -  -  -144 

where  he  loses  the  effects  ....  -  426 

where  he  sells  goods  at  an  undervalue  ...  427 

where  he  suffers  money  to  lie  dead  in  his  hands  -  -     il. 

where  he  delays  disposing  of  goods,  by  which  they  are  injured      ih. 
responsible  only  for  the  damages  he  recovers  for  goods  taken 
out  of  his  possession  -----  428 

not  answerable  for  a  loss  by  the  fall  of  stocks    .  -  -    ib. 

not  for  money  lent  on  a  real  security  not  suspicious  at  the  time  -    ib. 
shall  have  no  allowance  for  executing  the  office,  unless  directed 
by  the  will     -  -  -  -  -  -  -  45G 

whether  a  legacy  be  left  to  him  as  a  recompence  or  not  -  456 

in  what  special  cases  entitled  to  a  commission  -  -  -  457 

effect  of  grant  by,  of  all  his  property     -  -  -  -  134 

to  what  actions  liable     -  -  -  -  -   458,  et  sr.q. 

not  liable  to  actions  for  a  tort     -  -  -  460,461,462 

nor  where  defendant  could  have  waged  his  law  -  -  461 

when  personally  liable  on  his  promise    -  -  -       463,  464 

what  acts  shall  constitute  an,  a  trader,  what  not  486,  487,  488 

executor  debtor  -------  347 

one  of  several  executors  debtor  -  -  -  -  348 

when  he  shall  be  trustee  to  the  amount  of  the  debt  for  the  resi- 
duary legatee  or  next  of  kin    -  -  -  -  -  350 

executor  legatee  -  -  -  -  344. 350. 352 

his  assent  to  his  own  legacy  -  -  -  -  345 

express  -  -  -    ib. 

implied  -  -       345,  346 

where  not  implied  -  -  346 

till  he  has  made  his  election  shall  take  his  legacy  as  execu- 
tor -------    ib. 

must  act,  or  show  his  intention  to  do  so,  to  entitle  himself 

to  a  legacy  for  his  trouble  -  -  -  .  347 

cannot  give  himself  a  preference  in  regard  to  a  legacy  -    ib 

reversioner  in  fee,  of  a  tenant  for  years  -  -  -  134 

interest  of,  of  tenant  in  common  -         '   -  -  -  155 

infant,  incompetent  to  act  -  -  -    34.101.356.445 

formerly  might  have  acted  in  many  respects  at  the  age  of 

seventeen         -----  34.  356 

not  liable  to  be  sued        -  -  -  -  -  471 

executor  durante  minoritate         -  -  -  -     36,  o7,  38 

executor  durante  minoritate  debtor  -  -       '     -       350,  351 

acts  of,  durante  minoritate  -  -  -  -       357,  358 

distinguished   from  an  administrator 
durante  minoritate  -  -  -  406 

executor  durante  minwitate,  action  by    -  -  -  -  445 

executor  coming  of  age  after  the  filing  of  a  bill  by  administrator 
durante  minoritate       ------  458 


INDEX.  567 

'ExecatOT— continued.  Page 

executor  durante  absentia  -  -  -  -  -     38 

acts  of  a  married  woman  executrix         .  -  -  -  358 

how  restrained  where  the  husband  is  abroad  -  -     ib. 

in  case  she  survive,  not  liable  to  an  action  suggesting  a  de- 
vastavit by  the  husband  ....  471 

acts  of  co-executors,    359,  360.  430.  447.  457.  472.  483,  484,  485,  486 

not  distinguishable  from  those  of  joint  administrators     -  408 

must  be  all  sued  in  case  they  have  all  administered        -  471 

where  one  shall  not  be  affected  by  notice  to  the  other    -    ib. 

limited  executor  liable  to  be  sued  -  -  -  -    ib. 

power  of  a  surviving  co-executor  .  _  .  .  363 

of  a  mediate  executor      -  -  -364.430.447.452 

chargeable  in  what  case  for  the  act 

of  his  testator      -  -       430.  473 

when  residue  undisposed  of  shall  go  to,  when  not      351,  et  seq.  361 

when  to  co-executors,  when  not  .  .  _  361,  et  seq. 

when  husband  and  wife  executors  shall 

be  excluded  from  the  residue  359.  362 

executor  de  son  tort         -  -  -  -  -  -     39 

what  acts  make  one  -  -38,39.  107 

what  not  -  -  -  41.  103.  245 

by  statute  -  -  -  -  -     40 

when  a  party  is  disseisor  or  trespasser,  and  not  such  executor     42 
who  is  such,  a  question  of  law  -  -  -  -    ib. 

has  no  interest  in  the  property  -  -  -  -  243 

administration  granted  to,  effect  of     -  -  244.  367,  368 

shall  not  entitle  him  to  an  action  of 
trover  for  goods  previously  dis- 
posed of  to  defendant  for  payment 
of  the  funeral      -  -  -  368 

administration  granted  pendente  lite  to  ...    {f,, 

acts  of-  -  -  --  -  -     364.  et  seq. 

as  against  creditors  may  pay  debts     -  -  -  .  364 

as  against  the  rightful  representative  cannot  plead  payment  of 

debts    ■ 365 

on  general  issue  may  give  in  evidence  such  payments,  in  what 
cases  -  -  -  -  -  -  -    ib. 

effect  thereof       -  -  -  -  -  -    ib. 

when  they  are  of  no  avail  ....  366 

in  general  cannot  retain  .  .  .  -      366,  367 

may  under  the  statute  .....  3G6 

no  actions  lies  by        -  -  -  -  -       366.  447 

remedies  against  _  .  -  -  473,  474.  496 

cannot  after  action  brought  against  him  by  a  creditor  avail  himself 

of  a  delivery  of  the  effects  to  the  rightful  administrator  -  367 

nor  of  administrator's  assent  to  tlic  retainer  of  his  debt  -    ib. 

'  if  he  deliver  the  effects  to  tho  administrajor  before  such  action 

brought,  he  may  give  it  in  evidence  imdcr  plene  adminlstravit     Hi. 


568  INDEX. 

Executor — continued  '  Page 

executor  of-  -  -  -  -  --  473 

executor  de  son  tort  of  -  -  -  -  -             -  47-1 

Executorship,  division  of     -  -  -  -  -  -           38.  C8 

Exemplification  of  probate  -  -  -         -  -  -            -    77 

Factor  of  goods  appointed  executor  by  principal      -            -            -  -  457 

Fairs          -  -            -            -            -            r            -       '     -            -  -  139 

Father .     87 

relations  by  his  side  -  -  -  -  -  -91 

Felo-de-se -  -         12.  34.  93.  144 

Feme  covert — promissory  note  given  to       -  -  .  -  -  228 

where,  deposits  money  to  her  separate  use    -  -       228,  229 

will  of 10,  11 

executrix       j-      -      -  -  -  -  -        34.  358 

Avhere  she  is  an  infant         -  -  -  -     34 

intestate      -  -      ,       -  -  -  -  1,18 

and  re&iduary  legatee         .  -  -    ih. 

■  death  of,;  after  jijdgment  recovered  by  husband  and 

her,  and  before  execution  -  -  -  136 

where  goods  of  the  testator  in  the  hands  of,  may  be 

taken  in  execution  for  the  husband's  debt  -  -    ib. 

cannot  administer  without  the  husband's  permission  -     ih. 

how  administration  is  granted  to,  when  husband  is  abroad, 

or  incompetent       -  -  -  -  -  -91 

administration  granted  to,  survives  not  to  husband  -    92 

administration  granted  to,  and  husband  jointly  during  cover- 
ture -  -  -  -  -  -  -    ib. 

effect  of  ...  -  -  -  -    ib, 

administratrix,  term  vested  in,  not  extendible  for  husband's 
debt  -  -  -  -  -  -  -  136 

mortgagee  in  fee       -  -  -  -  -      222,  223 

for  a  term  of  years  -  -  -  -    ib. 

legatee  of      -  -  -  -'  -  320,  321.  490 

executor  of   -  -  ,       .     .      -      -  -  68.  86 

devisee  of     -  -  -  -  -  ,         -      ,      -    85 

Ferrets         -  -  -  ••  -  -    -        -  -  -  148 

Filial  portion  by  the  custom  of  York  -  -  -  -  -401 

Fines  imposed  by  the  judges  at  Westminster  ....  278 

at  the  assizes  -  -  -       278.  459 

by  justices  at  quarter  sessions  ...      278.  459 

by  commissioners  of  sewers  ...       278.  459 

bankrupts  -  -  -  -    ib. 

by  stewards  of  leets  ....  -     ib. 

•  due  to  the  crown  for  copyhold  estates  -  -  -       ,      -  260 

action  for  by  lord's  executor  assessed  on  copyholder  for  admittance  437 

Fire  engine  -  -  ....  -  .       199.  211 

Fish  -  - 141.115.193 

Flax  -  -  -  -  -  -  -  -  -  150 


INDEX.  569 

Page 
Foreclosure,  decree  of  nisi  -  -  -  -  -  -189 

Foreign  attachment,  executors  and  administrators  within  the  custom  of      -  478 
'  in  what  cases  it  operates  ....     ib. 

in  what  not      -  -  -  -  -       478,  479 

Foreign  court,  grant  of  administration  in     -  -  -  -  -  108 

Fraiid — administration  granted  by  .  _  -  -  -  121 

administration  subsequent  granted  by  -  .  -       126.  128 

Fraudulent  gift  of  the  assets  by  executor     -        .    -  -  -  -  154 

Fruit  -    .        -  -  -  -  -  -  149.  193.  195 

Funds  public,  legacy  given  out  of  .  .  -      325.  333 

Funeral      '-  -  -  ^  -  -  -  -  41.  47.  245 

expenses  of  -  -  -  -      •     -  246,  247.  424 

allowed  in  preference  to  debts  -  -  -  -  245 

to  what  extent  -  -  -  -  246 

payment  of,  under  a  void  administration  -  -  132 

Furnace        -  •         -  -  -  -  -  -  -       197.  199 

Gaoler,  action  by,  against  executor  of  prisoner  for  provisions  found  for  tes- 
tator       -  --------  460 

Garments      ----.----  150 

Gavelkind  lands  devisable  by  felon'  -  -  -  -  -12' 

Gentleman  pensioner's  place — ^purchasfe  for  son  of,   an  advancement  -  377 

Goods  household     -  -  -  -  -'  -  -       150.  224 

delivery  of,  by  key    -  -  -  -  ..  -  -  234 

Granary  built  on  pillars  in  Hampshire         -  -  -  -  -  200 

Grandfather 'S?;  90,  91.  384 

ex  parte  paternd  .-----  385 

ex  parte  matemd  ...---    H. 

Grandmother  -  -  r  -  -  -  -  -     ib. 

Great  grandfather     -  -  -  -  -  -  -  87,  88 

Grandchild  -  -  -  -  -  -  -  87.  375.  390 

Great  grandchild      -  -  -  -  -  -  -  -  87,  88.  375 

Grandson  of  a  brother  -  -  -  .        ,    -  -  -  384 

Granddaughter  of  a  sister  -  -  -  -  -  -385 

Grant  by  one  executor  of  his  interest  to  his  co-executor      ,  -  -  360 


Grass 

149.  160. 

193. 

195.  436 

Grates 

- 

- 

-  198 

Guardian- 

—to  an  infant         -             -             - 

100, 

,  101,  102 

to  a  minor           -          •  - 

- 

-  100 

to  several  infants 

- 

-  101 

or  trustee  shall  not  change  the  nature  of  the  estate 

- 

182,  183 

may  by  decree  in  equity 

- 

-  183 

Half-blood    

- 

J)l,  94 

brother  or  sister  of  the     - 

- 

-  374 

tjares 

. 

- 

147.   192 

Hawks 

. 

- 

147.   149 

Hedges 



115. 

193.  206 

570  INPEX. 

Page 
Heir  -  -  -  -  -  -  -  -  .140 

chattels  real  which  go  to,  and  on  what  principle  -  -  -  176 

entitled  to  what  rent     -  -  -  -  -  -       176,  177 

to  a  nomine  paenx  ......  173 

power  of  entry  descends  to        ----..  18O 

entitled  to  money  covenanted  to  be  laid  out  in  land      -  -  ■-  igl 

unless  testator  intend  to  give  it  the  quality  of  personal  estate  -    tb. 

evidence  of  such  intention    -  -  -  -  -  -    ib. 

entitled  to  mortgages,  in  what  cases     -  -  -        .    -  -  .183 

of  mortgage  in  fee,  when  he  shall  have  the  benefit  of  a  foreclosure      -  185 
when  he  shall  present  to  a  church         -  -  -  -  '  -  189 

entitled  to  charters  ■and  deeds,  court  rolls,  &c.  ...  191 

to  the  chests  in  which  they  are  deposited         ...    ib. 
to  an  antique  horn         -  -  -  -  -  -    ib. 

to  deeds  though  no  land  descended       ...       191,  192 
where  land  had  been  sold  by  fraud,  the  money  refunded  after  the  death 

of  vendee  shall  go  to  his       .--...  I88 
chattels  personal  which  go  to  -  -  -  -  -  -  192 

animate  -  -  -  -  -  -  -    ib. 

vegetable  .......  193 

trees,  &c.  .  -  .  .  .  .   193,  et  seq. 

inanimate  -  -  -  -  -  -    196,  ei  aeq. 

entitled  to  damages  for  breach  of  covenant  affecting  the  reality,  if  it 
occurred  after  the  testator's  death      -  -  -  -  -  163 

executor's  right  to  enter  the  house  of,  to  remove  goods  -  -  225 

may  distram  goods  not  removed  by  executor     -  -  -  -  255 

may,  if  bound,  be  sued  by  a  creditor  executor  ...  298 

speciality  creditor  may  resort  against  and  devisee  without  suing  the 
executor  of  debtor     -  -  -  -  -  -  -411 

at  law,  share  of,  in  distribution  ...  371.  376.  379.  40I 

at  law  must  bring  into  hotchpot  advancement  out  of  the  personal  estate  379 

though  in  the  nature  of  a  purchaser  under  a  marriage  settlement      -    ib. 

co-heiresses  must  bring  in  such  advancement  -  -  -  -    ib. 

lands  descended  to,  in  fee-simple  -  -  -  -  .  409 

with  power  to  executor  to  sell        -  -  -414 

advowsou  descended  to  ......  409 

where  descent  to,  is  broken      -  -  -  -  -  -  414 

estate  descended  to,  charged  with  the  paynjent  of  debts  -      414,  413 

trust  estate  descended  to  -----  -  415 

at  law  excluded  by  his  inheritance  of  land  in  fee  or  in  tail  from  a  filial 
portion  under  the  custom  of  York     .....  40I 

of  copyholder  -  -  -  -  -  -411,  412 

in  borough  English      .......  381 

of  lunatic  -  -  -  -  -  -.-  -  191 

Heir-looms  -.-...  196,  197.  211 

chattels  in  the  nature  of  .....  2OO 

by  special  custom  -  -  -  -  -  •    ih. 

Hemp  -....--.       150.  194 


INDEX.  571 

Page 
Hereditaments — corporeal    -  -  -  -  -  -  -145 

incorporeal  _  .  .  .  _        140,  145 

Herons         ..--..._-  147 

Hops  .......  150.  194, 195 

Hospital,  master  of  .  .  .  -  -  -201,203 

Hotchpot     .-.--..    37G.  378.  395,  398 
advancement  shall  be  brought  into,  by  child,  only  among  the  other 

children,  and  not  for  the  benefit  of  the  widow  -  -  .  378 

advancement  of  child  shall  be  brought  into,  by  his  representa- 
tive      -  -  -  .  -  .  .       378,  379 
advancement  out  of  the  personal  estate  shall  be  brought  into,  by 
the  heir  at  law  .......  379 

though  in  the  nature  of  a  purchaser  under  a  marriage  settlement  379 

advancement  pro  tunto  shall  be  brought  into  ...     ib. 

advancement  shall  be  brought  into,  by  co-heiresses  -  -    ib. 

Husband — and  wife,  relation  of        -----  -  213 

interest  of,  in  the  chattels  real  of  the  wife       -       213.216 
alienation  of  wife's  chattels  real  by,  direct  or  consequential  213,  214, 

215 

may  generally  assign  wife's  possible  and  contingent  interests  213,  214 

where  not       ...----  214 

lease  b)'^,  of  wife's  term,  to  commence  after  his  death    -  -215 

cannot  charge  such  chattel  real  beyond  the  coverture     -  -    ih. 

disposition  by,  of  part  of  the  wife's  term  -  -       215,216 

wife's  term  extended  on  the  death  of     -  -  -  -  216 

having  been  mortgaged  by  husband  and  wife,  and  the  mort- 
gage paid  off  on  the  death  of  -  -         .   -  -    ih. 
and  wife  joint-tenants     -.--..  219 
'           and  wife  joint  tenants  of  a  rent-charge  during  their  lives  -216 
entitled  to  an  advowson  in  right  of  wife              -             -       216,  218 
to  the  trust  term  of  the  wife       ....  218 

.  what  chattels  real  go  to  surviving  ...   2\Q,  et  seq. 

arrears  of  rent  due  to  wife  go  to  surviving  ...  224 

chattels  personal  of  wife  in  possession  belong  to  -  -    ih. 

given  to  the  wife  after  marriage,  though  not 

come  to  his  possession,  go  to  -  -  225 

though  wife  live  apart  from     -  -    ih. 

■where  property  given  to  w'ife  does  not  go  to       -  -       225,  226 

power  of,  with  regard  to  wife's  paraphernalia    -  -  -231 

power  of,  of  an  executrix  to  act  -  -       31,  32.  241.  358 

power  of,  of  an  administratrix  to  act       -  -  -  -    92 

a  receiver  may  be  appointed  wliere,  of  an  executrix  is  abroad    -  358 
action  by,  of  executrix   ------  445 

in  an  action  against  wife  executrix,  must  be  joined        -  -  471 
on  marriage   of  executrix  and  devastavit  by,  both   answer- 
able     358,359 

devastavit  by  executrix  and  subsequent  marriage,  husband  as 
well  as  wife  chargeable  -  .  -  -  -  359 

H 


572  INDEX. 

Husband — continued.  Page 

where,  and  wife  executors  shall  be  excluded  from  the  residue  -  359 
interest  of  representative  of  surviving  -  -  -  -217 

grant  of  administration  to  -  -  -  -  83,  84.  224 

right  of,  thereto  at  common  law  -  -  -  83,84 

how  it  may  be  controlled      -  -  -  -    85 

consent  of,  to  probate  of  wife's  will       -  -  -  -    C8 

Wife — what  chattels  real  go  to  surviving    -  -         ^'--  214,  215,  216 

what  chattels  personal  -  -  -        219,220,221.399,400 

choses  in  action  of  -  -  -  -  -  -       220,  224 

which  vested  in,  before  marriage    -  -  -  220 
after  marriage      -            -            -    ih. 
where  husband  sues  for  choses  in  action  of,  and  dies  before  execu- 
tion            -       220,221 

where  husband  dies  before  he  has  proceeded  to  reduce  choses  in  ac- 
tion of,  into  possession      ------  221 

where  husband  dies  before  receiving  a  debt  due  to,   under  a  com- 
mission of  bankrupt  -  -  -  -  -  -    ib. 

where  husband  dies  before  seizing  an  estray  in  franchise  of  -    ib. 

where  husband  grants  a  letter  of  attorney  to  receive  a  legacy  due 

to  ..,.--  ^  -       221, 222 

choses  in  action  of,  where  a  settlement  before  marriage  has  been 
made  in  consideration  of  the  wife's  fortune  .  -  -  222 

of  part  of  her  fortune     -  -  -  -  -  -    ib. 

where  the  settlement  is  silent  in  respect  to  personal  estate  of         -    ib. 
decree  in  equity  in  favour  of  the  husband  and  wife  in  right  of         -  223 
where  husband's  representative  entitled  in  equity  to  the  choses  in 
action  of  surviving  -----       222,  223 

where  fortune  of,  is  in   the  court  of  chancery  on  the  husband's 

death    --------  223 

where  on  her  death  -  -  -  -  -  -    ib. 

where  there  is  issue  of  the  marriage  -  -  -       223,  224 

property  to  the  separate  use  of         -  -  -  225, 226,  227 

to  what  arrears  thereof,  entitled  to,  at 

her  husband's  death  -  -  228 

right  of,  to  paraphernalia      -  -  -  -  229.422,423 

how  excluded  from  paraphernalia    -----  232 

necessary  apparel  of  surviving,  protected     -  -  -  -    ib. 

husband  cannot  make  a  grant  to,  or  covenant  with  her,  but  may  give 
her  property  by  will  ------  300 

executrix  or  administratrix  in  the  lifetime  of  husband  -       241.  358 

next  of  kin,  a  minor  -  -  -  -  -  -     92 

may  elect  her  husband  her  guardian  to  take  ad- 
ministration for  her  -  -  -  -     ib. 

where,  is  executrix,  and  husband  is  abroad  -  -  -  -  358 

on  his  death  her  interest  as  executrix  survives  to    -  -  -  342 

on  a  judgment  against  husband  and  executrix,  if  she  survive,  not 
liable  to  an  action  of  debt  suggesting  a  devastavit  by  the  husband, 
and  why  --------  471 


INDEX.  573 

Wife — continued  .  Page 

in  case  she  married  after  testator's  death,  liable  for  the  wasting  of 

the  husband          .--.---  471 
■where  will  of,  executrix,  in  part  void           -            _  -       242,  243 

legacy  to  a 320,321.490 

Identitate  nominis     -------       159.  436 

Incapacity,  mental   --------9 

Increase — interest  vested  in  executor  by      -  -  -  -  -  166 

where  not        ------       166,  167 

Indictment  for  forging  a  will,  pending  a  suit  in  respect  to  it  in  the  ecclesias- 
tical court  -  -  -  -  -  -  -  -77 

Infant 9.  34.  356 

distinguished  from  a  minor  in  the  spiritual  court      -  -  -  100 

assignment  of  guardian  by  ordinary  to  -  -  .  -  100 

executor        ..----.-  357 

executor  and  residuary  legatee  -  -  -  -  -  124 

where  one  executor  is,  and  his  co-executor  not  -  -  -  102 

marriage  of,  after  administration  granted  durante  minoritate  -     ib. 

death  of,  after  administration  granted  during  his  minority,  and  that 
of  other  infants       -  -  -  -  -  -  -    ib. 

executor  after  seventeen,  could  formerly  have  sued  by  guardian,  or 
prochein  amy         -  -  -  -  -  -  "  445 

cannot  now  maintain  an  action  till  he  comes  of  age  -  -     ib. 

executor  formerly  might  have  been  sued  after  the  age  of  seventeen  -  471 
cannot  now  till  he  is  come  of  age      -  -  -  -  -    ib. 

legacy  to       -  -  -  -  -  -  -  -  490 

payment  thereof  into  court  -  -  -  -  318 

maintenance  of  -  -  -  -  -  325.  327.  357 

education  of  -  -  -  -.-  -  -  -  328 

Injunction 271.318.358.445.490 

Insanity  of  next  of  kin  .-.----  103 

Insolvency   -------  35.  102.  341 

Inspector  of  seamen's  wills  -----         60.  190 

Interest  of  debts       -  -  -  -  -  -  286,287.464 

of  legacies  -  -----         323,  ei  se^?.  328 

executor  liable  for  in  equity,  in  what  cases  -  -  .  480 

Intestacy      ^  -  -  -  -  -  ■  "  -80 

Inventory     -  -  -  -  -  -  "  "  -41 

the  nature  of  -----  -    247,  d  seq. 

must  be  written  and  stamped         -----  248 

exhibited  in  the  spiritual  court      -  -  -      96. 247,  248.  491 

for  whose  benefit  -----  248 

at  what  time         -----  ibid,  et  seq. 

effect  of -       249,250 

omission  to  bring  in        -  -  -  -       126.  249 

when  dispensed  with       -----  251 
when  decreed  before  probate,  or  administration   under 
seal     -------  252 


574  INDEX. 

Inventory — exhibited — continued.  Page 

commission  of  appraisement  and,  thereupon  -  253 

how  far  questionable  by  a  creditor   -             -  -     ib. 

in  a  court  of  orphanage  in  London,  in  what  case  -  254 

Ireland,  leasehold  estate  in  ---_._  144 

Issue — taken  on  a  probate,  how  triable          -             -             -             -  -     78 

taken  on  grant  of  administration       -            -            -            -  -    95 

Issues  forfeited        -.--,..  278. 459 

Jacks  -  -  -  -  -  -  -  -  -  198 

Jewels  .-.---         150.  224.  229,  230.  401 

ancient,  of  the  crown  -  -  -  -  -  -199 

Joint  tenantcy  in  chattels     -  -  -  -  -  -  -163 

Judgments   .--..---         56.  432 
in  courts  of  record  ------  262 

priority  of,  depends  not  on  the  original  cause  of  aption  -  -  264 

in  inferior  courts,  records  of,  removable  into  the  courts  of  record 
at  Westminster  -  -  -  -  -  '    ib. 

on  a  scire  facias  -  -  -  -  .       264, 265 

interlocutory  judgment  -  -  -  -  265,  266.  289 

where  after  verdict,  and  before  the  day  in  bank,  defendant  dies  -  265 
where  after  an  interlocutory  judgment  defendant  dies    -  -    ib. 

where  defendant  died  after  a  writ  of  inquiry  executed  and  before 
the  return  of  it  -  -  -  -  -  -  266 

relation  of  -  -  -  -  -  -  -    ib. 

fraudulent  -  -  -  -  -  -  -     ib. 

quod  computet     -------  267 

in  a  foreign  country       -  -  -  -  -  -    ib. 

the  docquetting  of  -  -  -  -  -       266,  269 

not  docquetted  how  considered  -  -  -  -       ■      -  268 

of  inferior  courts  not  required  to  be  docquetted  -  -  -  269 

yet  executor  bound  to  take  notice  of  them      -  -  -    ib. 

against  executor  -  •  -  -  -       265.  267 

where  there  are  several  executors  -  -  294 

by  the  name  of  administrator,  ox  vice  versa        -    ib. 

of  assets  quando  acciderint  -  -  -  -  -  479 

confessed  by  one  of  several  co-executors         ■  -  -       360.  472 

on  simple  contract  confessed  by  an  executor  being  ignorant  of  a 

bond,  on  which  judgment  is  afterwards  given  -       293,294 

against  husband  and  wife  executrix,  if  she  survive,  not  liable  to 

an  action  of  debt  suggesting  a  devastavit  by  the  husband       -  471 

form  of,  against  an  executor        ...  -       463.  469 

form  of,  in  the  alternative  -  .  .  .       463,  464 

for  the  costs   -  -  -       467,  468 

interest  on  a-  -  -  -  -  -  -  286 

Justices  of  the  peace  have  no  authority  to  order  an  executor  to  maintain  an 
apprentice  -----._.  476 

King — may  be  executor       -  -  -  -  -  -  -33 


INDEX.  575 

King^conttnued.  Page 

entitled  to  eflfects  of  intestate  in  what  cases  -  -      107,  108 

debts  due  to  -  -  -  -  -         259,  et  seq.  286 

debtor  of,  outlawed  on  a  mesne  process        -  -  _  -  261 

assignment  of  debt  to  -  -  -  -  -  -    ib. 

property  accruing  to,  by  outlawry    -----  260 

Land — settlement  of,  on  child  -----      371.  376 

Leads  ---------  197 

Lease— for  years      -  -  -         56,  86.  140,  141.  176,  e«  sey.  212.  252 

determinable  on  lives        -  -  .  .      140.  176 

of  a  rectory  -------  146 

by  parol       -------       278,  279 

made  by  administrator  durante  minoritate  how  far  good       -  -  405 

sale  of,  by  limited  administrator      -  -  -  -  -    ib. 

Leets — profits  of-  -  -  -  -  -  -  -139 

Legacy — ^upon  condition      -------  314 

definition  of-------  299 

general  -  -  -  -  301, 302,  303 

specific.  -  -  -  -  -  -    ib. 

lapsed  or  vested,  in  what  cases     -  171,  172.  303.  306.  357.  454 

shall  lapse,  though  left  to  legatee,  his  executors,  administrators, 

and  assigns  -----  304 

though  testator  express  an  intention  to  the  contrary     ib. 
if  legatee  die  before  the  condition  on  which  it  is  given 
be  performed  -----  238 

or  before  it  is  vested    -  -  -      304,  305 

may  be  so  framed  as  to  prevent  its  lapse  -  -  -  -  304 

to  several  persons  not  extinguished  by  the  death  of  one  of  them        ib. 
nor  to  remainder-man  by  the  death  of  the  first  legatee   -  -     ib. 

nor  to  remainder-man  by  his  death  in  the  lifetime  of  the  first 

legatee  .-.-..      395,  306 

nor  if  the  legatee  take  in  the  character  of  trustee  -  -  304 

nor  if  made  to  carry  interest      -  -  -  .      305,  313 

distinction  between  such  as  is  vested,  and  such  as  is  not  171,  172.  305. 

313 
charged  on  land,  when  vested,  when  not   -  -  172,  173,  174 

to  be  laid  out  in  land  -----_  393 

executor's  assent  to  -  -  -  44.  46.  140.  306.  308 

why  necessary  ...      395^  397 

effect  of  -  -  -  -  -  307 

legatee  cannot  take  possession  of,  before  such 


assent 

39. 

307 

legatee's  interest  in,  before    - 

-      307, 

308 

such  assent  express         -           .           . 

- 

309 

implied         -            .            - 

-       308. 

310 

absolute 

- 

310 

may  be  on  condition  precedent 

- 

/■/;. 

not  subsequent 

-       310, 

311 

576 


INDEX. 


Legfacy — executor's  assent  to — continued.  Page 

shall  confirm  an  intermediate  grant  by  lega- 
tee of  his  legacy  ...  311 
to  a  release  of  debt  by  will  -  -  308 
good  before  probate              -            -            -  312 
not  before  executor  has  attained  twenty-one     ib. 
has  relation  to  testator's  death          -            -311 
once  given,  irrevocable         ...    H. 
when  it  cannot  be  given       -            -      311,  312 
one  of  several  co-executors  may  assent  to             -            -            -361 
assent  to,  by  limited  adrainisjtrator,  with  the  will  annexed  -  405 
payment  of            -----            -      312.  424 

when  to  be  paid  ....      312,  313 

to  whom  -  -  312,  313.  321.  323.  327,  328 

voluntary  bond  payable  in  preference  to  -  -  283 

pajrment  of,  when  legatee  is  an  infant       _  -  -  .  314 

executor  has  no  right  to  pay  it  to  the  father       314,  et  seq. 

unless  very  small,  when  he  may,  into  the  hands  of 

the  infant,  or  to  the  father  ...  318 

payment  of  infant's,  into  court,  under  the  stat.  36  Geo.  3.  c.  52.     ib, 

payment  of,  to  an  infant  by  an  executor,  to  save  a  forfeiture  of  his 

own       ....----  316 

payment  of,  to  the  father  of  an  adult  child  ...  314 

illusory  payment  of  -----  -  320 

payment  of,  to  be  divided  at  executor's  discretion  -       319,  320 

where  the  legacy  is  left  to  one  legatee,  to  be  divided 

among  himself  and  others  ...  32I 

where  legatee  is  a  married  woman  -  -  320 

living  separate  from  her  husband  -  -  .    ib. 

divorced  a  mensd  et  thoro    ...       320,  321 
executor  may  decline  paying  her  legacy  where  no 
provision  has  been  made  for  her,  unless  the  hus- 
band will  make  a  settlement       ...  321 
nor  will  chancery  compel  such  payment  but  on  the 
same  terms,  unless  the  wife  appear  in  court,  and 
consent  -  -  -  -  -  -     ib. 

where  legatee  is  a  bankrupt  ...    if). 

where  the  legacy  was  left  after  signing,  but  before 
allowance  of  his  certificate         ...    ib. 
conditional  payment  of,  and  security  to  refund,  an  obsolete  practice  322 
payment  of,  bequeathed  to  legatee  conditionally  .  -       313,  314 

payment  of,  without  notice  of  the  revocation  of  the  will  -  -     79 

distinction  between  a  voluntary  and  a  compulsory  payment  of     -  341 
where  the  assets  were  originally  deficient,  and  where  they  after- 
wards became  so  by  misapplication  ...    ih. 
payment  of  interest  on       ....  171,172.323 

from  what  period  to  commence        -      323.  327 
when  specific  ....  323 

where  legatees  are  infants  -  -  -  325 


INDEX.  577 

Legacy — payment  of  interest  on — continued.  Page 

where  infant  legatees  die  before  twenty-one        ih. 

where  the  infant  is  the  child  of  testator  -     ib. 

where  a  natural  child  .  -  -  326 

'  where  a  grandchild     -  -  -  -    ih, 

where  a  nephew         -  -  -  -    ib. 

on  a  bequest  of  a  residue  to  be  divested  on  a 

continofency  _  -  -  -     ih, 

where  left  to  infant,  payable  at  twenty-one, 
and  devised  over  on  his  dying  before,  and 
he  so  dies    -  -  -  -      326,  327 

where  father  of  infant  legatee  is  living  -  327 

where  the  principal  of  a,  left  to  an  infant,  shall  be  broken  in  upon 

317,  318.  327,  328 
where  not  -  -  -  -  -  317,  318.  328 

rate  of  interest  payable  on  -  -  -  -  -  328 

must  be  paid  in  the  currency  of  the  country  in  which  testator  re- 
sided when  he  made  his  will     -----  322 

interest  to  be  computed  according  to  the  course  of  the  court         -  328 
how  paid  where  testator  left  effects  partly  here,  and  partly  abroad  322 
where  some  legacies   are  described   as   sterling,   and 
others  not      ------  323 

where  legacy  is  charged  on  lands  in  another  country  ih. 

payment  of,  by  administrator  under  a  void  administration  -  132 

out  of  a  mixed  fund  of  real  and  personal  estate,  payable  on  a  fu- 
ture day,  and  legatee  dies  before  the  day  -  -  -  422 
receipt  for              -----           309.  and  App. 

limitation  of-------  170 

ademption  of         -  -  -  -  -  -  -  329 

express  -  -  -  -  -  -    ib, 

implied  -----  ibid,  et  seq. 

pro  tanto       -----  333 

when  cumulative,  when  not  -  .  .  -      334.  336 

when  in  satisfaction  of  a  debt,  when  not  -  -      236.  338 

abatement  of,  general  or  specific  -  -    306.  339,  340.  347 

of  specific  legacies  out  of  a  specific  chattel      -  -  340 

of  legacy  to  a  charity  .  -  -  -     ih. 

refunding  of,  in  what  cases,  in  what  not  -  241,342.347 

payment  of,  to  residuary  legatee  _  .  -  -  342 

left  to  executor     -------  347 

pecuniary  or  specific  unequal  to  co-executors        -  -      361,  362 

equal  pecuniary  legacies  to  co-executors  -  -  -  362 

equal  specific  legacies  to  co-executors      .  -  -  -    ih. 

executor's  assent  to  his  own         -----  345 


express 


ih. 


implied  -  -  -  -  -  -  -    ih. 

cannot  give  himself  a  preference  in  regard  to  a  -  -  347 

on  a  bequest  to  executors  generally,  one  may  assent  for  his  part  361 


578  INDEX. 

Legacy — continued.  Page 

effect  of  one  executor's  taking  his  legacy  without  the  assent  of 
the  other  -  -  -  -  -  -  -45 

to  executor  for  his  trouble  ...  347.  352.  456 

must  act,  or  show  his  intention  to  act, 
to  entitle  himself  to  such  a  -  347 

to  one  of  two  executors  for  his  care  and  trouble    -  -  361 

specific,  to  executor,  no  bar  of  money  due  to  him  on  mortgage  185,  186 
when  debt  of  executor  a  specific  bequest  to  him,  when  not      347.  351 
specific,  to  husband  and  wife,  joint  executors       -  359.  362,  363 

interpolation  of  a  -  -  -  -  -  -    70 

where  lands  shall  be  assets  only  for  the  payment  of  legacies  416 

payable  at  a  future  time  may  be  secured,  and  appropriated  in 
equity   --------  482 

whether  vested  or  contingent        -  -  -  -  -    ih. 

out  of  personal  property  may  be  sued  for  in  the  ecclesiastical 
court      ...-----  489 

in  a  court  in  equity  -  -  -  i  -  -  -  479 

out  of  land  only  in  a  court  of  equity  -  -  -  490 

bond  for,  cannot  be  enforced  in  the  ecclesiastical  court     -  -  491 

no  action  at  law  lies  against  an  executor  -  -  -      465,  466 

in  the  hands  of  an  executor  not  subject  to  foreign  attachment        -  479 
Legatee — who  may  be-  -  -,--  -  -  299 

wife  .--..-  300 

infant  in  ventre  sa  mere  -  .  -  -     ib, 

who  not   --------  299 

traitors     -  -  -  -  -  -  -    ib. 

persons  not  having  qualified  for  offices    -  -       299,  300 

persons  denying  the  Trinity,  for  the  second  offence        -  300 

or  the  scriptures  -  -  -       •      -  -    ib. 

artificers  going  out  of  the  kingdom  to  exercise  or  teach 

their  trades   abroad,   and  not  returning  within   six 

months  after  due  notice  -  .  -  -    ib. 

witnesses  to  the  will  or  codicil  -  .  .    ib. 

mistake  in  the  christian  name     -  -  -  -  -    ib. 

specific,  cannot  retain  the  legacy  in  his  possession,  though  there 
be  assets  -  -  -  -        '    -  -  -  ■^07 

nor  although  testator  direct  that  the  legatee  shall  take 

the  legacy  without  the  executor's  assent         -  -  307 

advantage  of       -  -  -  -  -  -  340 

disadvantage  of  -  -  -  -  -  -    ib. 

where  executor  is  -  •  -  -  ■  -  344 

residuary  ....  -     99.  117,  118.  122 

legatees,  several  residuary  -  .  -  -        99.  117 

executor  and  residuary     -  -  -  -  -  -117 

feme  covert  executrix  and  residuary        -  .  -  -  118 

marshalling  assets  in  favour  of   -  -  -  -  -  420 

may  sue  in  chancery,  and  in  the  ecclesiastical  court  at  the  same 
time 496 


INDEX.  579 

Page 
Letters,  private,  Written  by  testator,  enjoined  from  being  published  without 
executor's  consent  -  -  -  -  -  -  -  455 

Libeller        -  -  -  -  -  -  -  -  -     13 

Limitation — executor's  interest  by-  -  -  -  -  -170 

of  a  legacy       -------  171 

Limitations — statute  of,  executor  not  bound  to  plead  to  an  action  by  testa- 
tor's creditor  -  -  -    '        -  -       343,  429 
executor's  suffering  testator's  creditor  to  avail  hinaself  of  42G,  427 
Lis  pendens               -             -             -             -            -            -  -  66.  94.  103 

Literary  property      --------  152 

London^custom  of  the  city  of         -  -  -  -  -  388,  ct  seq. 

where  it  shall  control  that  of  York  -  -  402 

custom  of,  and  York  in  thamain  agree    -  -  -       402,  403 

Looking-glasses       -  -  -  -  -  -  -  -197 

Loss — of  probate     -  -  -  -  -  -  -  -77 

of  letters  of  administration    -  -  -  -  -  -     95 

of  the  effects  by  the  executor's  negligence    -  -  -  -  426 

Locks  and  keys  -----  -  -  _  197 

Lunatic — committee  of       -----  -       182,  183 

estate  of  --  -  -  -  -  -  -  191 

chancery  will  'change  the  nature  of,  for  the  benefit  of  the 
owner  -  -  -  -  -  -  -    ib. 

Maintenance,  money  expended  for  child's,  no  advancement  -       380.  396 

Mandamus    -     '       -  -  '-  -  -  -  57.  66.  86.  94.  105 

Manure         ---------  150 

Marines        -      .      -  .  .  -  -  -  -  -     5.  60,  109 

Marriage  settlement  -  -  -         ,  -  -  -  -  284 

articles      -  -  -  -  -  -  -  -    ib. 

settlement,  operation  of,  in  regard  to  the  custom  of  London     392,  393 

of  female  orphan  of  the  city  of  London  under  twenty-one  -       393,  394 

Mayor  and  commonalty        -------  2OI 

aldermen  of  London        ------  254 

Melons         ---------  150 

Memorial  of  wills  affecting  lands  in  Yorkshire  or  Middlesex  -  -  246 

Merchandize  -  -  -  -  -  -  -  -  150 

Merger  of  a  term      -------       141,142 

Millstones  -  -  -  -  -  -  -  -  197 

Minor  distinguished  from  an  infant  -  -  -  -  -  100 

Money         ---..--.       150.  224 
covenanted,  or  agreed  to  be  laid  out  in  land  -  -  8.  181 

cannot  be  followed  when  invested  in  a  purchase        -  -  .  182 

where  land  had  been  sold  by  fraud,  refunded  after  the  deatli  of  vendee  188 
collected  on  briefs  for  rebuilding  a  copyhold  tenement  -       200,  201 

of  testator  intermixed  with  executor's  ....  238 

Monument  in  a  church  ....---  199 

Mortgages 139.161.183.222 

of  freehold  and  copyhold  lands    -  -  -.  -  -422 

I 


580  •  INDEX. 

Mortgages — continued.  Page 

in  general  personal  contracts,  and  the  mortgage-money  belongs  to 
the  executor     ------       183.  187 

where  not      -  -  -  -  -  -  -  185 

when  the  condition  mentions  neither  heirs,  nor  executors  -  183 
if  it  appoint  the  money  to  be  paid  to  the  heir  or  execu- 
tor -  -  -  -  -  -  -     183.  185 

mortgagor's  failing  to  redeem,  effect  of    -  -  -  -  186 

forfeiture  of,  and  mortgagor's  releasing  to  the  heir  of  mortgagee 

in  fee 187 

devise  of,  as  real  estate  by  mortgage       -  -  -  -  188 

devise  of,  as  real  estate  after  a  decree  of  foreclosure,  nisi  -  189 

where  it  will  not  pass  as  land  tinder  a  general  description  of  lo- 
cality  -  -         -  -  .  .  .  -  .  -189 

ancient     --------  187 

in  fee  to  a  citizen  of  London        -  -  -  -  -    ib. 

money  secured  by,  articled  to  be  laid  out  in  land  and  settled      -  189 
mortgage  lands  descended  -----  418 

devised 418.421 

estate  bought  subject  to  -  .  -  -  -  -  419 

in  fee,  lands  held  by,  descending  before  redemption  to  the  heir 

within  the  province  of  York    - 
debts  by,  as  they  effect  the  personal  assets 
how  far  a  revocation  of  a  will      -  -  -  - 

legacy  given  out  of  -  -  -    •        - 

to  wife  in  fee       -  -  -  -  • - 

for  a  term  of  years  ----- 

by  husband  and  wife  of  the  wife's  term 
of  terms  of  years  by  executor       -     ,       - 
mortgaged  terms,  assignment  of,  by  executor 
executor  not  barred  of  money  due  on,  by  a  specific* legacy 
Mortgagee,  fraudulent  sale  by  -  "  " 

Mother         ........ 

relations  by  her  side  -  -  -  -  - 

what  a  child  receives  out  of  the  estate  of  the,  no  advancement 

iVe  exeat  regno — against  feme  covert  administratrix 

Negro  servants        ...---- 

Nephew       -------- 

son  of  the    -  -  -  -  - 

Niece  -  -  -  -  -•- 

Nomine  pcenas  -  -  -  -  - 

Nominees  when  the  king  is  executor 

Notice  of  judgments  docquetted       --,--- 
not  docqyetted  .  .  ^  . 

in  inferior  courts  of  record      - 
of  a  decree  in  equity 

express  - 

implied  -  - 


- 

401 

- 

285 

- 

26 

- 

323 

222, 

223 

- 

ib. 

216. 

218 

- 

256 

- 

ib. 

185, 

186 

- 

188 

-'- 

90 

- 

91 

- 

380 

. 

489 

- 

151 

90. 

385 

■ 

90 

- 

385 

- 

178 

- 

33 

269, 

,293 

268, 

,269 

- 

269 

- 

270 

270 

,292 

. 

ib. 

INDEX/ 


581 


- 

44 

58. 

250. 

492 

96. 

250 

250. 

252 

- 

377 

66.74 

- 

221 

- 

202 

- 

393 

- 

399 

Notice — continued.  Page 

of  recognizances,  statutes,  and  other  inferior  debts  of  record  -  278 

of  debts  by  specialty  ..----  293 

one  executor  shall  not  be  affected  by,   to  the  other  who  conceals  it 
from  him    -  -  --  -  -  -  -  472 

where,  to  one  shall  be  presumed  notice  to  the  other  -  -    *&• 

Nuncupative  will    -  -  -  -  -  -  2.  16.  37.  59 

executor  may  be  appointed  by      -  -  -  -    37 

codicil  -  -  -  -  --  -6 

Oath  on  renunciation  of  executorship  .  -  - 

on  taking  out  probate  -  -  -  -  - 

administration     -  -  -  - 

special,  on  exhibiting  an  inventory      -.  -  - 

Office,  civil  or  military,  purchase  for  son  of,  an  advancement 

Official         

Orphan's  portion       -  -  -  -  -  .  - 

Orphanage  money    ------ 

part  by  the  custom  of  London    -  ^  - 

nature  of  the  interest  in  -  -  - 

release  of,  for  a  valuable  consideration,  binding  in  equity  399,  400 

Ovens  ---------  198 

Overseers  of  the  poor,  money  due  from        -----  262 

Outlaw -  -  12. 34.  93.  154.  213 

Outlawry,  property  accruing  to  the  crown  by  -  -  -       260,  261 

of  the  king's  debtor  on  mesne  process      -  -  -  -261 

legacy  forfeited  by,  of  legatee,  though  before  executor's  assent  -  308 

Owelty  of  partition,  bond  for  -  ■•.  -  -  -       180,181 

Pales  -  -  -  -  ■'  -  -  -  -  137 

Papists         -  --  -  -  -  -  -  -35 

Paraphernalia  of  the  wife    -------  229 

necessary  apparel       -  -  -  -  "  -    ib. 

'  ■  bed »■*• 

pearls  -  -  -  -  '  "  -    ib. 

diamonds        -  -  -  r  -  -  -    ib. 

plate  bought  with  wife's  pin  money  -  -  -  -  230 

cloth  delivered  to  wife  for  her  apparel  -  -  -    ib. 

■    jewels  presented  by  husband  to  wife  for  the  express  purpose 

of  wearing  them      -----       230,231 
husband  may  sell  or  give  away  in  his  lifetime  wife's  orna- 
ments -  -  .  -  -  -  231 
husband  cannot  bequeath  them             .             -            -             -     ib. 
wife  not  entitled  to  such  ornaments  where  the  assets  are  de- 
ficient at  husband's  death    -             -             -             -  -    ib. 
'     wife's  ornaments  preferable  to  legacies          -            -  -    ib. 
if  pawned  by  liusband  in  his  lifctiino,  shall 
\h:  rcd(;t!inf(l  out  of  his  personal  estate  231,  232 
where  wife  is  excluded  from,  by  her  own  agreement  -  232 


582 


INDEX. 


Paraphernalia — continued.  Page 

wife's  necessary  apparel  protected  even  against  creditors    -  232 
when  husband  bequeaths  to  wife  her  jewelsand  then  over, 

and  she  makes  no  election  to  have  them  as  -  -    ib. 

marshalling  assets  in  favour  of        -  r  -       422,  423 

Parents        -  -  -  -  -  .  -.  -90 

Parish  apprentice     ----...-  476 

Parrots         -----....  148 

Pars  rationabilis       -  -  -  s-  -  -  81.  389.  403 

Parsnips       -.-.--..       150.  194 

Parson  ---.-.--.  201 

Partner — on  the  death  of  one,  his  interest  at  law  vests  in  his  representatives    ib. 

but  the  remedy  at  law  survives  ...  -    ib. 

surviving,  regarded  in  equity  as  a  trustee  for  the  representatives  of 

the  deceased      -  -  -  -  -  -  -    ib. 

interest  of  the  executor  of  a  deceased,  in  choses  in  action  -  163 

how  the  action  in  such  case  brought  -  -  -  -    ib. 

executor  of  a  deceased,  and  the  survivor,  cannot  be  jointly  sued  for 
a  debt  due  from  the  partnership  -  -  -  -  475 

Partners  in  trade      -  -  -  -  -  ..  .  454 

Partnership  in  trade  "  -  -  -  -  -  -       155.  166 

Partridges    ----...  147,  148.  192 

Patent — granted  to  testator  -  -  -  -  -  -152 

grant  by  letters,  of  effects  of  a  bastard  dying  intestate  and  without 
issue      ------    107,  108.  386,  387 

Pawn — goods  in----^--       154.  164 

executor's  power  to  redeem  them  -  -  -  -  257 

executor  redeeming  goods  in,  with  his  own  money  shall  be  indem- 
nified out  of  the  effects  -  -  -  .       164,165 
executor  so  redeeming  goods  in,  to  the  amount  of  their  value,  is 

regarded  as  a  purchaser  of  them  in  his  own  right  -  -165 

effect  of  such  redemption  of  goods  in,  where  the  time  specified  for 

redemption  is  past         -  -  .  _ 

wife's  paraphernalia  in      - 
writings  of  an  estate  in      - 
Pearls  ------. 

Peculiar       ------- 

Pews  -  -  -  -  - 

Pheasants    ------- 

Pictures       -----.. 

Pigeons        ---.._.   141. 
Pin-money  ------- 

arrears  of,  at  husband's  death      -  -  - 

Plantations,  judge  of  probate  in  the 

how  bound  by  grant  of  probate  here 
estate  in  fee  in  - 
Plants.         ------- 

Plea  j)uis  darrein  continuance  -  -  -  . 

Plea,  false,  pleaded  by  executor      -  -  -  . 


- 

- 

ib. 

- 

231, 

232 

- 

- 

192 

- 

- 

229 

I 

30,5] 

1,52 

199, 

200 

147. 

,148. 

192 

150. 

197 

147. 

149. 

192 

- 

228 

- 

ib. 

- 

71 

[,72 

jhere 

ib. 

- 

- 

416 

- 

- 

149 

- 

- 

368 

289. 

463. 

467 

INDEX.  583 

Page 

Pleas,  distinct,  pleaded  by  co-executors      -  -  -  .  .  472 

Plene  administravit,  plea  pf  -  -  267.  279,  280.  365.  367.  470 

evidence  thereof  ...  267.  282.  298.  367 

Policy  of  insurance,  re-assurance  by  executor  -  -  _  .  453 

Portion 172.  329.  371.  376 

infuturo,  an  advancement   -  -  -  -  -  .  377 

contingent,  an  advancement  ■  -  -  .  .      377,  378 

charged  on  land,  when  vested,  when  not      ...       172,  173 
may  be  vested,  but  not  raisable  immediately         -  173 
devise  for  raising,  pursuant  to  an  agreement  before  marriage  -  411 

filial,  by  the  custom  of  York  -  -  -  -  -401 

Portraits  ancient      -  -  -  -  -  -  -  -199 

Possibility  -  -  -  .  -  .   170.212,213,214 

tenant  after,  of  isSue  extinct        -  -  -  .  .  207 

Post-office,  money  due  for  letters  to  the       -  -  -  -  -  262 

Posts  and  rails         -..---..  197 
Poultry         -  -  -  -  .       ^     .  .  .  -147 

Power  of  executor  to  sell  land         ■-  -  -  -  412,413.416 

Presentation  to  a  church       .  .  .  -  .   139.  144.  189,  190 

when  the  grantee  of  the  next,  dies  after  the  church 
becomes  void,  and  before  presentation  -  190 

Presents  by  a  father  to  his  child      -  -  -  -  -      380.  396 

Priority  of  date,  when  not  material  .  -  ,  263.  265.  275 

Prisoner       -  -  -  -  -  -  -  -  10.  93.  151 

Probate — acts  of  an  executor  before  ...  46.245.312 

what  actions  he  may  commence  before  -  46.  445,  446 

what  actions  he  may  maintain  before   -  -  -  -    47 

executors  liable  to  be  sued  before  ...  43,  49 

relation  of  -  -  -  -  -  -  46,  47 

shall  not  prejudice  a  third  person         -  -  -    47 

death  of  executor  before   -  -  -  -  -49.  115 

after  taking  the  oath,  but  before  the  passing  of 
the  grant        -  -  -  -  -    49 

effect  of,  by  limited  executor  in  regard  to  subsequent  executor    49. 

457.  458 
jurisdiction  of  granting     -  -  -  -  -  -    49 

by  courts  baron  -  -  -  -  -     50 

by  mayors  of  boroughs  ...  -     {b. 

by  the  ordinary  or  metropolitan  ...    fj, 

bona  nofnbilia,  what  shall  be  -  -      51,  e/  seq. 

of  the  amount  of  -  -  -  -    53 

.  debts  bona  notabilia         -  -  -  -     54 

how  considered  when  by  specialty  -  -    55 

when  by  simple  contract  -     ib. 

ionanc^/aWfV/ in  England  and  Ireland      -  -     53 

what  shall  not  ho  bona  notabilia  -  52.  5G 

privilege  of  granting,  i)crsonal      -  -  -  -  -     GG 

when  void,  when  voidable  -  -  -  -  53.  73 


G5 


584  *  INDEX. 

Probate — continued.      '  Page 

of  will,  when  proved  in  the  common  form,  and  when  per  testes^ 

and  how  -.  -  -         .  -  -  -  56,  57 

how  will  and  codicil  in  testator's  handwriting  proved      -  -     57 

in  another's  handwriting     -  -  -    58 

oath  on  taking      -  -  -  -  -  -  -    ib. 

what  is  styled  so  -  -  -  -  -  -    ib. 

of  nuncupative  wills         -  "  -  -  -  -     ,        -    59 

of  the  wills  of  seamen  and  marines  -  -  -  -     GO 

where  executor  is  infirm,  or  at  a  distance  in  England  or  foreign 

parts     -  -  -  ... 

of  citing  executive  to  prove  -  -  -  .-  -    ib. 

effect  of  his  failure  to  appear     -  -  -  -  -    ib. 

penalty  for  his  acting  and  neglecting  to  prove  within  six  months  43, 66 
ordinary  bound  to  grant    -  -  -  -  -  -     66 

compellable  by  mandamus        -----    ib. 

wiiat  he  may  return      -  -  -  -  -  -    ib. 

may  act  by  his  official  -  -  -  -  -    ib. 

when  granted  by  the  dean  and  chapter     -  -  -  -    67 

of  a  bishop's  will  -  -  -  -  -  53.67 

double      -  .-  -  -  -  -  -67 

where  several  executors  with  distinct  powers      -        "    -  -    ib. 

of  will  of  a  married  woman  -  -  -  -  -    68 

when  limited        -  -  -  -  -  -  68,  69 

new,  by  executor  of  executor  not  necessary  _  .  .    ib. 

by  surviving  executor,  having  refused  during  the  lives  of  his  co- 
executors  -  -  -  -  -  -  -86 

of  wills  of  personal  estate  only     -•  -  -  -  -~  69 

of  a  mixed  nature  -  '- '  '         -  -  -    .70 

not  to  be  granted  of  wills  respecting  of  land  merely        -  69,  70 

of  a  will  with  reservation  as  to  a  legacy  -  -  -     70 

of  a  will  of  a  party  long  absent  .  _  -  .     il,. 

■of  will  lost  -  -  -  -  -  -  -    71 

of  will  illegible  by  accident  .  .  -  -  -    ib. 

how  a  will  proved  in  Scotland  is  proved  here      -  -  -    71 

how  if  in  Ireland  -  *  -  -  -  -  -    ib. 

how  if  in  the  East  or  West  Indies        -  -  -  -     ib. 

grant  of,  by  judge  of  probate  in  the  plantations  after  such  grant 

here      -  -  -  -  -  -  -  71,  72 

of  a  will  made  abroad  disposing  of  effects  here    -  -  -    72 

of  effects  abroad  according  to  the  custom  of  the  country  sufficient    ib. 
of  will  in  a  foreign  language  '      -  -  -  -  -    ib. 

of  will  annexed  to  an  administration        -  -  -  -    98 

revocation  of     .    -  -  -  -  -  -    73. 75.  78 

revoked  for  fraud      -  -  -  -  -    73 

on  proof  of  revocation  of  the  will     -  -    ib. 

of  making  a  subsequent  will         -    ib. 

of  appeals  in  regard  to      -  -  -  -  -  73.  75 

when  affirmed  on  appeal,  cause  sent  back' 


-     75 


INDEX.  585 

Probate — continued.  Page 

granted  de  novo  by  court  of  appeal  when  sentence  reversed  -    75 

effect  of  ------        75.  115 

death  of  executor  before  ....       115.  140 

effect  of  -  -  -  -  -  -  -    ib. 

death  of  executor  residuary  legatee  intestate  before  -  -  118 

effect  of  -  -  -  -  -  -  -    ih. 

death   of  executor  residuary,  legatee  leaving  a  will  before  -    ib. 

effect  of  -  -  -  -  -  -  -     ib. 

death  of  executor  residuary  legatee  intestate  after,  effect  of         -    ib. 
within  what  time  will  be  proved  in  the  common  form  may  be  dis- 
puted   -  -  -  -  -  -  -,-76 

within  what  time  a  will  formally  proved  ...    H, 

unrevoked,  not  to  be  contradicted     •        -  -  -  -    ib. 

seal  of  ordinary  may  be  shown  to  be  forged         ...    {jj, 

or  that  there  were  bona  notahiUa  ...  -    £J. 

payment  of  debt  to  an  executor  under,  of  a  forged  will,  good      76,  77 

practice  not  to  try  forgery  of  a  will  while  litigating  in  the  spiritual 

court     -  -  -  -  -  -  -  -77 

payment  of  money  under,  of  will  of  a  living  person  void  -    ib. 

loss  of      -  ...  -        ■    -  -  -  -    ib. 

how  probate  may  be  proved  -  -  -  -      "    77,  78 

issue  taken  on,  triable  by  a  jury  -  -  -  -    78 

effect  of  revocation  of       -  -  ,  -  -  -  -     ib. 

of  registering  at  the  bank  ....      255,  256 

Prohibition  .....  70.  127.  318.  491.  494 

Promise — memorandum  in  writing  of  -  -       '     -  -  -  464 

consideration  of      '  -  -  -  -  -  •  -     ib. 

what  is  sufficient  -  ._  .  .    ib. 

Promissory  note        -  -  -  -  -  -  157.  235.  286 

interest  on  ......  287 

Pumps         -  -  -  -  -  -  -  -  -  197 

Pur  auter  vie  tenant  -  -  -  -    .        -  -  -  208 

estate  ..-,..       410,  411 

Quaker         .-•------     43 

Quareimpedit  -----        158.  IGl.  240.  434.  437 

Queen  -"-  ---  -  -  -  -12 

Rabbits Ill-  117 

Rails  -  -  -  - 197 

Receiver 102,  10.3 

pendente  lite      .      -  -  -  •  -  -  -lOo 

may  be  appointed  by  chancery  in  case  an  executor  becomes  bank- 
rupt  ------  488 

when  Imsband  of  executrix  is  abroad  -  358 

Receipt— for  a  legacy  ...  -  ."{29,  &  rid.  append. 

executors  joining  in  a  -  ■  -  -  -       483,  484 

effect  of       -  - "184 


586  INDEX. 

Page 

Recognizance  -    .       -  -  -  -  -  56. 263.  432 

definition        --.-..      271,  272 

distinction  between,  and  a  bond         .  .  -  -    iJ. 

how  authenticated      ------  272 

in  the  nature  of  a  statute  staple  -  -  272.  274,  275 

description  of         -  -  -  -  -      274,  275 

recognizance  and  statutes  payable  in  the  same  order  -  275 

not  yet  due     -  -  -  -  -  -      275,  276 

contingent      -------  276 

not  enrolled,  how  considered  -  -  -  277 

Rectory,  lease  of-  -  -  -  -  -.  -146 

Refunding  of  legacies  -  -  -'-  -  -  -341 

Refusal  of  the  office  of  executor       -  -  -    43.  92,  93.  120,  121.  128 

of  administrator  -  -  -  "-  -  120 

Registry  of  the  spiritual  court  -  -  -  58.96,97.119.492 

Register's  book  in  the  spiritual  court  -  -  -  -  78.  95 

Registering  probate  at  the  bank        -  -  -  -  -      255,  256 

seamen's  wills  -  -  -  -  -  -    60 

Registry  of  wills  affecting  lands  in  Yorkshire  or  Middlesex  -  -  246 

Relations — description  of,  under  a  will        -     .       -  -  -      300.  386 

Release' of  debts  by  will       -  -  -  -  -  -  -  308 

of  debts  by  executor  -  -  -  -  -  -  424 

by  husband  of  executrix,  or  administratrix  -  -  242 

by  one  executor     -----      359,  360 

by  one  executor  of  his  interest  to  his  co-executor  -  360 

Relief— due  to  testator,  action  for    -  -  -  -  -  -  433 

due  from  testator,  action  for  -  -  -  -  -  459 

Remainder  -  -  -  -  -  -  -      165.  214 

interest  vested  in  executor  by      -  -  -  -       165,  166 

when  not  -------  1C6 

Remainder-man — what  chattels  go  to  -  -  -  -  203,  et  seq. 

not  entitled  to  emblements  -  -  -  204,  ei  seq. 

right  of,  to  heir-looms      -  -  -  -  -  211 

Remedies — for  executor  or  administrator  at  law       -            -   254,  255,  256.  431 
action  by,  where  cause  of,  arose  in  testator's  lifetime        157.  431 
in  what  cases  not  maintainable      -            -       160.  436 
where  cause  of,  arose  after  testator's  death       162.  437 
executor  may  sue  in  a  court  of  conscience          -            -            -436 
may  hold  to  bail,  on  what  affidavit      -            -            -  438 
legal  remedy  of  creditor  executor  refusing  to  act  not  extin- 
guished   298 

action  not  maintainable  by  infant  executor         -      "      -  -  445 

formerly  maintainable  by  infant  executor  after  the  age  of  seven- 
teen  -  -  -  -  -  -  -  -    ib. 

husband  of  executrix  cannot  sue  without  her      -    .        -  -    ib. 

action  by  executor  durante  minoritate    -  -  -  -     ib. 

co-executors  must  all  join  in  an  action  -  -  .      445.  446 

of  their  joining  where  infant  is  co-executor    -  -  -  446 


INDEX.  587 

Remedies — continued.  Page 

in  action  by  co-executor  of  summons  and  severance       -  -  446 

when  on  judgment  recovered  by  two  executors  they  pray  diifer- 
ent  writs  of  execution  .....  447 

action  by  executor  of  executor  -  -  -  -  -    ib. 

action  by  administrator  -  -  -  -  •    ib. 

special  administrator  -  -  -  -  -    ib. 

joint  administrators    -  -  -  -  -  448 

•     where  either  party  dies  between  verdict  and  judgment  -  442 

after  the  assizes  commenced,  but  before 
the  trial  ....    ib. 

judgment  in  such  cases  how  and  when 
.,  '  entered  ...  -  443 

revived  by  scire  facias,  in  what  form    -    ib. 
where  either  party  dies  before  the  assizes,  the  suit  is  abated     -  442 
scire  facias  by  executor  on  his  coming  of  age  on  judgment  recov- 
ered by  administrator  durante  minoritate         -  -       447,  448 
scire  facias  by  administrator  in  such  case  against  the  bail  -  448 
execution  in  such  case  on  the  judgment             _            -            .    ib, 
scire  facias  by.  administrator  de  bonis  nan,  on  judgment  recover- 
ed by  executor            -            -            -            -            -            -    ib. 

if  executor  or  administrator  die  after  suing  out  execution,  but 
before  the  return  of  it,  administrator  de  bonis  non  may  perfect 
the  same         -  ....  -  -       448,  449 

and  where  the  execution  was  on  a  judgment  by  default  -  450 

where  in  such  case  sheriff  returns  a  seizure  of  goods,  but  that 

thej  remain  in  his  hands  pro  defectu  emptorum  -  -449 

where  at  the  time  of  the  executor's  or  administrator's  death  the 
money  is  levied  -  -  -  -  -  -    ib. 

if  executor  bring  a  scire  facias  on  a  judgment  or  recognizance, 
and  after  judgment  die,  administrator  de  bonis  non  must  bring 
a  scire  facias  on  the  final  judgment    -  -  -  -     ib. 

on  judgment  by  default  for  goods  taken  out  of  the  executor's  or 
administrator's  own  possession,  his  administrator  shall  have  a 
scire  facias  on  it,  and  account  to  administrator  de  bonis  non     -  450 
right  of  executor  to  distrain,  in  what  cases         -  -  450,  et  seq. 

right  of  executor  of  executor  to  distrain  p  -  -  452 

executor  as  such  may  prove  a  debt  under  a  commission  of  bank- 
ruptcy -  -  -  -  •  "  -10. 

when  executor  may  take  out  a  commission  for  a  debt  due  to  the 
testator,  when  not      -  -  -  -  -  -    jo. 

executor  may  sign  bankrupt's  certificate  ...    io. 

but  not  both  as  executor  and  in  his  own  right    -  -  -  453 

executor  before  probate  may  commence  an  action  -  -    4G 

may  arrest  a  debtor        -  -  -  -  "         .    ' 

party  before  grant  of  administration  cannot  commence  an  atiinii     95 
may  file  a  bill  in  equity  -  -  -'  "  -     »«• 

.for  executor  or  administrator  in  (equity  -  -         1G0.451,  f/ sry. 

for  executors  of  a  deceased  partner        -  -  -  -  l^l 

K 


588  INDEX. 

Remedies — continued.  Page 

for  executors  in  regard  to  testator's  letters  ...  455 

when  executor  may  institute  a  suit  against  creditors  to  have  their 

claims  ascertained  by  a  decree  of  the  court    -  -  -    ib, 

when  executor  is  entitled  to  an  injunction  to  restrain  a  creditor 

from  proceeding  against  him  at  Iviw     -  -  -       455,456 

entitled  in  general  to  no  allowance  for  his  trouble  -  -  456 

when  entitled  to  commission  -     ■•  -  -  -  -  457 

when  fraudulent  assignment  of  a  term  by  a  former  administrator, 

shall  be  avoided  in  equity  by  a  subsequent    -  ■  "  458 

bill  of  revivor  by  executor  -----  455 

subsequent  administrator        -  -  -  458 

where  one  of  two  executors  plaintiffs  in  equity  may  be  severed    457 
suit  not  abated  by  the  death  of  a  co-executor     -     ,       -  -     ib. 

after  executorship  of  temporary  executor,  a  subsequent  one  may 

maintain  a  suit  without  another  probate         -  -       457,  458 

executor  come  of  age  may  continue  the  suit  of  administrator  du- 
rante minoritate,  by  a  supplemental  bill  .  -  -  458 
at  law  against  executor  or  administrator  where  cause  of  action 

arose  before  testator's  death    -  -     .       -  "  "  459 

where  exist,  where  not  -  -  -  -         285.  460,  et  seq. 

against  executor  or  administrator  where  cause  of  action  arose  sub- 
sequent to  testator's  death      -  -  -  -  -  462 

for  rent  due  before  and  after  that  event  -  -       278.  281 

to  what  action  executor  not  liable  on  account  of  the  cause  460,  461, 

462 
on  account  of  the  form  -  -  -  -  -  461 

by  scire  facias    -  -  -  -  -    265,266,267.277 

ao-ainst  an  executor  come  of  age,  by  scire  facias  on  judgment  re- 
covered against  the  administrator  durante  minoritate  -  407 
scire  facias  against  executor,  when  defendant  dies   after  final 
judgment,  and  before  execution           -             -             -  -  469 

when  writ  of  fieri  facias  is  tested  before  defendant's  death,  but 

not  delivered  to  sheriff  till  after  it      -    .        -  -  -    ib. 

scire  facias  on  a  judgment  against  an  executor  or  administrator  -    ib. 
return  nulla  bona,  or  nulla  bona  and  a  devastavit  -       469)  470 

proceeding  on  either  of  such  returns      -  -  -  -  470 

judgment  of  assets  g'uareJo  «ccjc?emi^       -  -  -  -  479 

scire  facias  on  a  judgment  of  assets  quando  acciderint     -  -    ib. 

action  of  debt  on  a  judgment  of  assets  quando  acciderint  suggest- 
ing a  devastavit  -  -  -  -  -  -    ib. 

against  administrator  on  administration-bond    -  -       495,  496 

how  executor  may  make  himself  personally  responsible  463,  464 
cannot  be  sued  at  law  for  a  legacy  ■  -  465,  466 
not  liable  to  be  used  in  a  court  of  conscience  466,  467 
not  in  general  held  to  bail  -  -  .  467 

in  what  case  he  may  be  -  .  -     ib. 

infant  executor  not  liable  to  be  sued         -  .  -  471 

limited  executor  may  be  sued      ...    ib. 


INDEX.  589 

Remedies — ^how  executor — continued.  Page 

in  action  against  wife  executrix,  husband  must  be 
joined  -  -  -  -  -  -  471 

on  judgment  against  husband  and  wife  executrix, 
if  she  survive,  not  liable  to  action  of  debt  sug- 
gesting a  devastavit  by  the  husband      -  -    ib. 
where  co-executors  are  defendants          .            -            -       471,  472 
where  some  of  them  are  infants           ...  -  472 
how  they  must  appear             -            -            -            -            -    ib, 

one  executor  not  liable  for  the  devastavit  of  co-executor  -     ib. 

against  executor  of  executor  on  a  devastavit  by  the  latter  -  473 

actions  against  limited  administrator      -  -  -       474,  475 

administrator  durante  minoritate  having  wasted  the  assets,  liable 
to  the  executor  on  his  coming  of  age,  but  not  after  that  pe- 
riod to  a  creditor         ._.---  475 
executor  of  a  deceased  partner  and  the  survivor  cannot  be  jointly 

sued  for  a  debt  due  from  the  partnership         ...     ib. 
distress  against  executor  of  tenant  for  life  or  for  years   -  -    ib. 

remedy  for  the  assets  in  case  of  a  bankrupt  executor      -  -  488 

by  apprentice  against  executor  of  the  master  for  a  debt  where  de- 
stroyed by  the  act  of  the  party  _  -  -  -  348 
where  suspended  only  by  the  act  of  the  party         -  349 
where  obligor  of  bond  administers  to  obligee  and 
dies,  creditor  and  administrator  de  bonis  nan  of 
obligee  may  sue  executor  of  obligor      -  -     ib. 
foreign  attachment,  executors  and   administrators  within  the 
custom  of,  in  what  cases        -----  478 

in  what  not  -----       478,  479 

against  executor  or  administrator  in  equity         -  -  -  479 

bill  of  revivor  against  executor  -  -  -  -  -     ib. 

bill  by  legatees  or  parties  in  distribution  -  -       479,  480 

executor  liable  for  interest,  in  what  cases  -  -       480,  481 

if  he  compound  debts  due  from  testator,  shall  not  be  en- 
titled to  the  benefit  -  -  -  -481 

in  what  cases  not  liable  in  consequence  of  lending  or 
paying  money  ----.-    ib. 

generally  liable  for  compounding  or  releasing  a  debt, 
when  not       -  -  -  -  -       481,  482 

may  be  called  upon  in  equity  to  secure  a  legacy  payable 
at  a  future  time        -  -  -  -  -  482 

to  secure  an  annuity  -  -  -  -    ib. 

against  executors  joining  in  a  receipt    -  -  -       483,  484 

an  executor  not  admitting  assets  liable  to  account,  though  co-ex- 
ecutor admit  them      ------  486 

when  co-executor  not  liable  for  the  administration  of  the  pro- 
perty -  -  -  -  -  -  "  -    tb. 

against  executor  or  administrator  in  the  ecclesiastical  court       -  489 
at  the  suit  of  legatees  or  parties  in  distribution 

489,  et  seq. 
at  the  promotion  of  a  creditor  -  -  -  495 


590 


INDEX. 


Remedies — against  executor — continued.  Page 

when  legatees  may  sue  execator  in  chancery 
and  in  the  prerogative  court  at  the  same 
time  -  -  -  -  -  496 

if  temporal  matter  be  pleaded,  spiritual  court 

must  proceed  according  to  common  law       -  494 
specialty  creditor  may  resort  against  heir  and 
devisee,  without  suing  the  executor  of  debt- 
or      411 

de  son  tort        -  -  -      ,      -  -  473 

may  be  sued ,  with  a  lawful  executor,  but  not 

with  a  lawful  administrator  -  -    ib. 

how  far  liable  -  -  -       473,474 

executor  of,  liable  for  the  devastavit  of  the  latter  474 
executor  de  son  tort  of,  not  liable  for  the  devasta- 
vit of  the  latter         _  .  -  .    ib. 
may  be  sued  for  a  legacy  in  the  ecclesias- 
tical court          ....  496 

Rent  -  -  -     140.  143,  144,  145.  157.  159.  217.  224.  236.  239 

service  .-....-.  450 

charge  -  -  -  -  -  -  -  -    ib.. 

seek     -  -  -  -  -    .        -  -  -  '    ib. 

fee-farm  -  -  -  -  -  -  -  -    ib. 

due  to  the  crown  -  -  -  -  -  -  -  261 

to  what,  heir  is  entitled  ...  -  176,177,178 

where  heir  is  entitled  to  -  -  -  -  -  138 

to  what,  executor  is  entitled     ...---  136 
where  executor  is  entitled       -  -  -  -  -  179 

apportionment  of,  in  favour  of  executor  of  tenant  for  life  208,  209.  436 

a  debt  due  by  specialty  ....  278.  281.  459 

reserved  by  parol  lease  -  ...  .  .      279.  460 

after  determination  of  the  lease  .....  279 

left  in  arrear  by  testator       "    -  -  -  -  -  -    ib. 

accruing  after  his  death  -  -  -  -  -  -    ib. 

when  the  profits  of  the  land  exceed  the  amount  of      -  -       279,  280 

when  the  profits  are  less  than  the         .....  280 

avowry  for       -  -  -  r  r  -  -         48. 424 

as  incident  to  a  reversion  for  years  ...  437 

reserved  on  a  lease  for  years,  query  whether  executor  can  distrain  for  451, 

452 
Rent-charge — executor  of  grantee  of,  for  term  of  years,  if  he  so  long  live, 

cannot  distrain  for  the  same  ....  452 

an  advancement         -  -  -  -  -  -  377 

Replevin,  action  of  - 159.  IGl.  437 

Representation,  not  admitted  among  collaterals  after  intestate's  brothers'  and 

sisters'  children, 372.  382,  383 

Republication  of  a  former  will  -  -  -  -  -  -    28 

Requisition — in  regard  to  seamen's  wills      -  -  -  -  -    63 

•  in  regard  to  administration  to  seamen  -  -  -  112 

to  bishop  or  archbishop  in  England    -  -  -  65.  94 


INDEX.  591 

Requisition — continued.  Page 

to  the  magistrates  in  Scotland  -  -  -  -    65 

in  the  West  Indies  -  -  -    ib. 

Residue       -  -  -.  -  -  .  -  .  342 

undisposed  of-  -  -  -  -  .  -351 

parol  evidence  respecting       -  .  _  -  355 

interest  upon  --.....  324 

interest  of  executor  in  -  -  _  .   351,  et  seq. 

of  Avidow  executrix  in         -  -  -  -  -  353 

of  limited  executor  in  -  -  -  -  -  354 

where  husband  and  wife  executors  shall  be  excluded  from  -  359 

when  co-executors  shall  be  entitled  to,  when  not    -  -      359,  363 

co-executors  take  as  joint-tenants     -----  363 

Residuary  legatee  -  -  -  -  -  -  -3 13 

whfire  there  is  no  present  residue  -  100.  117.  123 

death  of,  before  the  surplus  is  ascertained  -  -  343 

shall  not  compel  the  other  legatees  to  abate        -  -  344 

shall  not  suffer  alone  in  case  of  a  devastavit       -  -    ib. 

infant  executor    -  -  -  -  -  -124 

bankrupt  executor  -----  488 

Retainer — by  executor  of  a  debt  due  to  him  ...  295,  et  seq. 

by  husband  of  executrix  -----  359 

by  one  of  two  executors  how  far  allowable         -  -  -361 

for  his  debt  not  in  general  allowed  to  executor  de  son  tort  -  366 

when  entitled  thereto  under  the  statute  -  -  -    ib. 

for  debt  by  limited  administrator  -  -  .  -  405 

Reversion     -  -  -  -  -  ...  -  -  377 

legacy  charged  on  ------  324 

Reversioner  -------      2O6.  211 

Review,  commission  of        -  -  -  -  -  -  74,  75 

Revocation  of  will  ------      14,  et  seq. 

Roman  catholica     -  -  -.-•-'  -  -  -35 

Saffron 150.  194 

Saintfoin      ---------  150 

Sale  of  the  deceased's  effects  -  -  -  -  -  -    40 

by  grantee  of  letters  ad  colligendum    -  -  1 07 

by  executor     .  -  -  -      256,  257 

though  specifically  bequeathed        -  -  256 

in  satisfaction  of  his  own  debt         -  -  296 

by  administrator  where  administration  is  void    128 

where  voidable        -  -  -        96.  129 

to  executor  by  sheriff  under  a ^m/mtw  -  -  -  .  239 

of  perishable  articles 40.247.404.428 

of  leases  by  limited  administrator         .  .  -  .  -  405 

of  goods  at  an  undervalue         ..----  427 

of  land  ....-.--  364 

of  land  devised  to  executor  for  that  purpose      -  .  -  -  413 

Satisfaction  ......--  336 

■Scire  facias  ,.--..    220.  265,  266,  267 


592  INDEX. 

Scire  facias — continued.  Page 

on  a  judgment     -  ...  -  202.  265.  407 

on  a  recognizance  ----._  277 

execution  by,  where  testator  plaintiff  died  after  final  judgment, 
and  before  execution    -----      441,  442 

effect  of  testator's  or  intestate's  death  after  a.  Jleri  facias  sued  out  442 

after  the  goods  are  seized      ib. 
where  either  party  dies  after  interlocutory  judgment,  and  before 

execution  of  the  writ  of  inquiry  .  -  -      443,  444 

the  form  of  the  saVe/aaa5  in  such  case  .  -  .444 

judgment  in  such  case,  how  entered       ...  -    ib. 

by  executor  on  his  coming  of  age  on  a  judgment  recovered  by 

administrator  durante  minoriiatc       ...       447,  448 
by  administrator  in  such  case  against  the  bail     ...  448 
by  administrator  de  bonis  non      -  -  -  -  .480 

when  it  lies      -  -  -  -  -    ib. 

when  not         -  .  -  -  .  449 

on  judgment  recovered  by  executor  or  administrator      -  -    ib. 

by  administrator  of  executor  or  administrator  on  a  judgment  by 

default  for  goods  taken  out  of  the  possession  of  the  latter       -  450 
where  defendant  dies  after  interlocutory  and  befcTre  final  judg- 
ment, two  writs  oi  scire  facias  must  be  sued  out         -  -  444 
when  respectively  -            -            -            -            -            -    ib. 

against  executor  where  defendant  dies  after  final  judgment,  and 

before  execution  ._..--  469 

on  a  judgment  against  executor  or  administrator  -  -    ib. 

return  nulla  bona;  or  nulla  bona  and  a  devastavit  -      469,  470 

proceeding  on  either  of  such  returns       -  -  -  -  470 

on  3.  indgment  oi  zssets  quando  acciderint  -  -  -     ib. 

against  executor  of  an  executor  on  a  judgment  against  the  latter, 
in  an  action  of  debt  suggestiTig  a  devastavit  on  a  judgment 
committed  by  him  in  the  lifetime  of  plaintiff's  testator  -  473 

on  a  judgment  where  necessary  against  an  executor  of  an  execu- 
tor     .  .  -  -  -  -  -  -    ib. 

Scire  fieri,  inquiry  .......  470 

Scotland,  leasehold  estate  in  -----  -  144 

Scriptures,  denial  of  .......36 

Seal  of  the  ordinary  -  -  -  -  -  -    46.  58.  76 

Seamen        -  -  -  -  -  -  -  -  4,  5 

Seamen's  wages       -  -  -  -  -  -  -  -60 

will  of--  -  -  -  -  -  -65 

administration  to  ......  109 

See,  vacancy  of        -  -  -  -  -  -  -  67.  94 

Sequestration  of  the  deceased's  effects         -  -  -  -  -    65 

Servant        -  -  -  -  -  -  -  -       151,  152 

Settlement  gained  by  executor         ......  146 

Settlement  on  a  child,  either  voluntary,  or  for  a  good  consideration,  an  ad- 
vancement ^ro  fanto         -  -  -  -  -  -  -377 

Sheriff,  action  against  -  -  -  -        159.  161.  435.  437,  438 

action  against  executor  for  money  levied  by  testator  as       -  -  460 


INDEX.  593 

Page 

Sheep,  wool  of.  -...._.  jgg 

Ship  at  sea  ----._...  253 

delivery  of,  by  bill  of  sale  -  -  .  .  .  234 

Signature  of  a  will   -  -  .  _  .  _  .  2.15 

of  a  codicil  -  -  -  .  ..  -6 

Simple  contract,  debts  by         157.  219.  261.  267.  285,  286.  433,  437.  459,  460. 

462,  463 

bills 286.  460 

notes        -  -  -  .  .  .    ij. 

verbal  promises   -  -  .  -  -    ib. 

promises  express  -  -  .  .    jj. 

implied  -  -  .  .    {j. 

collateral  -  -  -  .  450 

due  to  the  king    -  -  -  .      259.  286 

wages  of  servants  -  -  -  _  286 

of  labourers  -  -  -  -  -    ib, 

apprentice  fee  received  by  testator  -  -    {b. 

where  by  the  custom  of  London  equal  to  a  debt 
by  specialty      -----  282 

judgment  not  docquetted  on  a  level  with  -  268 

interest  on  -  -  -  .  -  286 

Sister  of  the  half-blood        -  -  -  -  -  -  -91 

Skirrets        ------_..  194 

Slave — his  right  to  a  legacy  ----_.  233 

Soldiers  in  actual  service,  will  of-  -  -  -  -  -4 

Son  ----.,...87 

of  intestate's  sister         -----..  393 

of  intestate's  aunt  ----.__  394 

Special  occupant      -  -  -  -  '  -  -  -       140.  179 

plea  by  executor      -  -  -  267.  280,  281,  282,  2S3.  298 

when  necessary      -  -  -  267.  280,  281 

Specialty — debts  by  -  .  -  .  .         278.  et  seq.  459 

not  yet  due      --..-.  281 

contingent       --.--.  282 

where  the  contingency  has  taken  place       -    ib. 

interest  on       -  -  -  -  -      286,  287 

Squirrels      -  -  -  -  -  -  -  -  -  248 

Statute  20  Hen.  3.  c.  2.       -  -  -  -  -  -  -  205 

13  Ed.  1.  c.  19. 82 

13  Ed.  1.  Westminster  2,  c.  23.       -  -  -  -  -  433 

de  mercatoribus,  13  Ed.  1.     -  -  -  -  -  -  272 

4  Ed.  3.  c.  7. -  -  433 

25  Ed.  3.  c.  5.  -  -  -  -  -  -  -  447 

27  Ed.  3. -  273 

21  Hen.  8.  c.  5.  20.  41.  65.  73.  83,  81.  97.  123.  247.  249.  253.  412 

23  Hen.  8.  c.  G.        -  -  -  -  -  -  -  274 

24  Hen.  8.  c.  12.     -  -  -  -  -  -  -     73 

25  Hen.  8.  c.  19.      -  -  -  -  -  -  -74 

26  Hen.  8.  c.  I.       -  -  -  -  -  -  -    75 


594  INDEX. 

Statute — continued.  Page 

28  Hen.  8.  c.  11. 208 

32  Hen.  8.  c.  1. 2 

32  Hen.  8.  c.  6. 13 

32  Hen.  8.  c.  37. 217.224.450 

33  Hen.  8.  c.  39. 259 

34  &  35  Hen.  8.  c.  5.  -  -  -  -  -        .    9,  10 

2  &  3  Ed.  6.  c.  13.  -  ...  -  -  -  434 

1  Eliz.  c.  1. 75 

43  Eliz.  c.  8. 39 

92  canon,  Jac.  1.      -  -  -  -  -  -  51,  52 

3  Jac.  1.  c.  5.  -  -  -  -  -  -  -     33 

3  Car.  1.  c.  2.  -  -  -  -  -  -  -    i^- 

17  Car.  2.  c.  8.         -  -  -  -  ^  265.  442.  4'48 

22  &  23  Car.  2.  c.  10.  -  -  -  -       85.  97.  247.  370 

25  Car.  2.  c.  2.        -  -  -  -  -  -  -    33 

29  Car.  2.  c.  3.  2.  4.  38.  59.  85.  140.  143.  169.  373.  410.  415.  464 

30  Car.  2.  stat.  2.  c.  1.        -  -  -  -  -  -    33 

30  Car.  2.  c.  3. 262 

30  Car.  2.  c.  7. 474 

1  Jac.  2.  c.  17.         -  -  -  -  370.  382:  390.  493 

3  W.  &  M.  c.  14. 411 

4  &  5  W.  &  M.  c.  2. 388 

4  &  5  W.  &  M.  c.  20. 268 

4&5  W.  &M.  c.  24.  -  -  -  -  430.473,474 

5  W.  &  M.  c.  20. 256 

5  W.  3.  c.  21. 4 

7  &  8  W.  3.  c.  38. 388.  403 

8&9  W.  3.  c.  11.  -  -  -  -  -  -      265.443 

9  &  10  W.  3.  c.  32. 33 

13  W.  3.  c.  6.  - i^- 

2  &  3  Ann.  c.  5.       -  -  -  -  -  -  "388 

4  &  5  Ann.  c.  16. 4.  54.  56 

8  Ann.  c.  14. 475 

9  Ann.  c.  10.  -  -  -  -  -  "  "262 

1  Geo.  1.  Stat.  2,  c.  13. 33 

5  Geo.  1.  c.  27.  13.  34 

11  Geo.  1.  c.  18. 388.  400 

2  Geo.  2.  c.  23. 441 

5  Geo.  2.  c.  7. 417 

5  Geo.  2.  c.  30. 221 

11  Geo.  2.  c.  19. 208.436 

14  Geo.  2.  c.  20. -  -  140 

17  Geo.  2.  c.  38. 262 

19  Geo.  2.  c.  37.  -  -  -  -  -  "  "  453 

19  Geo.  3.  c.  70. 264 

26  Geo.  3.  c.  63. 5.  60 

31  Geo.  3.  c.  32.      -  -  -  -  -  -  -    33 

32  Geo.  3.  c.  34. 5-  60.  109 

32  Geo.  3.  c.  67. 64.  113 


INDEX.  595 

Statutes — continued.  p 

36  Geo.  3.  c.  52.  -            -            .            .            .           318.  and  Jlpp. 

37Geo.  3.  c.  90 43.66.96.246 

38  Geo.  3.  c.  87.  31.  100, 101. 104. 121.  312.  356.  406.  408. 445.  471 

44  Geo.  3.  c.  98.  -            -            .            ,            .            .              jj 

45  Geo.  3.  c.  28.  -             -            .            .            .    56.  263.  432.  ^np! 

47  Geo.  3.  c.  74 ^J^ 

55  Geo.  3.  c.  60.  -            -            .            .            .             .     g.  60.  109 

Statute  merchant      ----..  i^a  260  2~2 

description  of        -  .  _  .  .  _  272 

estate  by    -  -  -  .  .  .       139^  212 

Statute  staple 134.260.273 

description  of  ---._.  273 

estate  by         ----..       139. 212 

not  yet  due  -----..,  275 

contingent    - 275,276 

Successor — what  chattels  go  to — what  not  -  -  -  -  .  20I 

Summons  and  severance  in  an  action  in  the  names  of  co-executors  -  446 

writ  not  abated  by  the  death  of  the  party  severed — nor  if  he  live 
till  judgment  can  he  sue  out  execution  -  -  -'^ib. 

Supplemental  bill  by  executor  come  of  age  after  administration  committed 
durante  minoritate  -----_.  353 

Surrender  of  lease  by  executor         -  -  -  .  -  -142 

by  husband  of  executrix  or  administratrix  -  -  242 

Survivorship,  right  of         -  -  -  -  -  155.  163.  454 

exists  not  in  regard  to  partner^  in  trade  or  husbandry  155. 163.  454 
Surviving  executor  ------       114.363 

administrator       -  -  -  -  -  -       114.  408 

Suspension  of  bishop  or  archbishop  -  -  -  -67.94 

Swans  -  -  -  -  -  --  -  -  192 

Syndics,  where  a  corporation  is  executor     -  -  -  -  -    33 

Tables  and  benches  long  fixed         ----..  197 

Tables  modern,  and  fixed    -------  igg 

Tapestry      -  -  -  -  -  -  -  -  -    il. 

Tenancy  from  year  to  year   -  -  -  -  -  -  -141 

Tenant  for  life,  executor  of-  -  -  -  -  -  -  206 

Term  for  years         --.--.  140.179.410 

vested  in  executor  by  his  entry  before  probate  -  -  140 

cannot  be  waived  by  executor  -  _  .       113,  279 

unless  where  there  are  not  assets  to  pay  the  rent  -       143,  144 

what  he  is  to  do  where  there  are  assets  to  pay  rent,  but  not 

for  the  whole  term  -----  114 

inanadvowson         ------  \Q\ 

in  trust  to  pay  debts,  and  then  to  attend  the  inheritance       -  178 
vested  in  a  trustee  to  attend  the  inheritance  -       410.  427 

grant  or  surrender  of,  by  one  of  several  executors     -  -  ."(iO 

revcrsfon  of  -  -  -  -  -  -  -  111 

Timber         -...-.-..  i:»;{ 


596  INDEX. 

Page 
Tithes 158.  190 

where  executor  is  considered  as  possessed  of  -  -       145,  1 46 

action  for  not  setting  out       -----       158.  434 

Tombstone  -  -  -  -  -  -  -  -  -  199 

Trade — not  generally  transmissible  to  executor        -  -  -  -  166 

where  he  may  carry  it  on  -  -  -  -       166.486 

where  the  testator  directs  the  residue  of  his  estate  to  be  employed  in 
carrying  on  his       -  -  -  -  .       166.  486 

where  the  testator  directs  part  of  his  assets  to  be  so  employed     166.  487 
Trader — what  acts  an  executor  of,  tnay  perform  without  making  himself 

one 487,488 

real  estate  liable  to  debts    -  -  -  -  -  -417 

Traitor 12.  35.  93 

Transmutation  of  the  property  in  favour  of  the  executor        -  -       238.240 

Trees  -  -  -  149.  160.  193,  194,  195,  196.  206,  207.  436 

branches  of,  lopped     -  -  -  ^  -  -  -  149 

timber 145.  193.  195,  196.  207 

not  timber -.  145.193.206 

Trespass,  action  of  -  -  -  -  -  -  158.  433.  437 

by  executor  lies  not  for  injury  to  testator's  person  or  free- 
hold         160.  436 

distinction  between,  and  that  of  trover  brought  against  ex- 
ecutor de  son  tort  -  -  -  -       365,  366 

Trinity,  denial  of-  ------36 

Trover,  action  of--  -  -  -  -  -       365.  434 

Trust — shall  never  fail  for  want  of  a  trustee  -  -  -  -  353 

whether  executor  of  an  executor  mayor  not  execute  at  law  a  power 
of  selling  land  given  to  the  first  executor,  he  is  bound  in  equity 
to  execute  it  -  -  -  -  -  -  -    ib. 

bond  given  to  testator  in      -  -  -  -  -       153,  154 

Trust-term  -  -  -  -  -  -  -  -  -  218 

Trust  estate  descended  to  heir         ------  415 

Trustee — where  executor  is,  of  the  residue  -  -  -  -       351,352 

where  co-executor  shall  be  -  -  -  -    361,  cf  seq. 

where  wife's  representative  is,  for  husband's  representative  -  116 

and  executor,  devisees  to  sell  land,  former  distinction  between    -  412, 

413,  414 

or  guardian  shall  not  change  the  nature  of  the  estate         -       182,  183 

may  by  a  decree  in  equity  -  -  -  -  -  183 

Turnips 150.  194 

Vats  for  dyers  -  -  -  --  -  -  -  198 

Venditioni  exponas,  writ  of,  sued  out  by  administrator  de  bonis  non  -  449 

Ventre  sa  mere,  childi  in         -  -  -  -  -  -        34.300 

Vicar 201 

Uncle -  -  -    90 

of  intestate    --------  334 

Usurer         -  -  -  -  -  -  -  -  -13 


INDEX.  597 

Page 
Wages  of  servants— ^f  labourers  ---.._  286 
Wainscots    ----.-...  197 

Wales,  custom  of-  -  -  -  -  ..  .  403 

Waste — tenant  for  life,  or  years  without  impeachment  of    -  -  -  207 

no  action  lies  for,  either  by  heir  or  executor  -  -       432,  433 

Widow — grant  of  administration  to  -  -  -  -  83.  86 

when  not  one  of  the  next  of  kin  under  a  will     -  .  -  386 

Widow's  chamber — by  the  custom  of  London         -  -  -  -  391 

compensation  for,  to  what  amount        -  .  -    £j. 

analogous  to  her  right  in  paraphernalia  -        "    -    ib. 

cannot  be  claimed  to  the  prejudice  of  creditors  -    ib. 

and  ornaments  by  the  custom  of  York  -       400,  401 

Will — definition  of-  -  -  -  -  -  -  -i 

of  lands  freehold        -  .  -  -  .        1,2.28.69,70 

of  lands  copyhold      -  -  -  -  -  -  -31 

of  customary  freehold  -  -  -  -  -  -      7 

of  personal  propei;ty  "  "  "  -  -        2, 3.  69 

of  terms  for  years  -  -  -  -      7 

in  gross  -  -  -  -  '    ib. 

in  trust  to  attend  the  inheritance        -  -     ib, 

of  transmitting  terms  by — of  creating  terms  by — of  money  out  of  land 

— of  money  covenanted  to  be  laid  ojit  in  land        -  -  -    ib. 

of  a  mixed  nature      -  -  -  -  -  -  -70 

written  -  -  -  -  -  -  -  -2 

nuncupative  -  .  -  -  -        3, 4. 59 

of  soldiers  in  actual  service        -  -  -  -      4 

not  permitted  to  sailors  or  marines  -  -  -       5 

of  English  seamen  and  marines        -  -  -        •    .  5.  60 

of  Irish  seamen  and  marines  -  -  -  -  -     64 

avoided  by  incapacity  of  the  party    -  -  -  -  -      9 

mental  disability — infancy,  within  what  age  in  males — in 
females — madness — idiocy — age — distemper — drunken- 
ness— having  been  born  blind  and  deaf — imprisonment 
or  captivity,  how  far      -  -  -  -  -    ib. 

coverture  -  -  -  -  -     9,  10.  242 

where  partially  avoided  by        -  -      212,  213 

crimes — treason  from  conviction  and  attainder  or  outlawry 
— felony  from  conviction  and  attainder,  or  outlawry — 
crimes  as  it  respects  personal  estate  only — treason  after 
conviction — felony  after  conviction — felo-de-se  -  -     12 

felony  not  capital — outlawry  in  civil  cases  -  -    ib. 

cancelling — revocation     -  -  -  -  -     14 

another  will         -  -  -  -  -  15.  17 

a  codicil  -  -  -  -  -  -     15 

where  either  relates  to  real  property — by  other  writing 

— relative  to  real  property — express      -  -  -     15 

implied      -  -  -     18 

marriage  of  man,  and  birth  of  a  child       ...    i^. 

marriage  alone  of  woman  -  -  -  -     19 


598  INDEX. 

Wills— avoided  by — continued.  Page 

not  by  birth  of  a  child  merely      -  -  -  -    ib. 

such  presumption  may  be  rebutted  -  -  -     18 

in  the  nature  of  ademption     -----     19,  ef  sey. 

revocation  in  equity  -  -  -  -  -  -  -26 

not  avoided  by  the  testator's  subsequent  insanity      -  -  -      9 

by  coverture,  if  made  with  the  husband's  licence;  such 
licence  extends  to  the  produce,  as  well  as  principal   8.  10 
how  it  operates  ....     10.85,86 

if  he  be  banished        -  -  -  -  -     10 

if  property,  to  the  wife's  separate  use  -  -     11 

as  executrix   -  -  -  -  -         11.  242 

of  the  queen   -  -  -  -  -  -11 

in  respect  to  gavelkind  land  by  felony  -  -  -  -     12 

persons  capable  of  making, 
usurers — libellers — persons  excommunicated,  semh. — alien  friend 
of  chattels  personal,  and  of  certain  chattels — alien  enemy  of  the 
same,  if  resident  here  with  the  king's  licence — express — implied     12 
persons  incapable  of  making, 
British  artificers  going  out  of  the  realm  to  exercise  or  teach  their 
trades  abroad,  or  so  trading,  who  shall  not  return  within  six 
months  after  warning     -  -  -  -  -  -     13 

alien  enemy   -.-  -  -  -  -  -12 

cannot  be  repealed  or  altered  by  parol,  or  will  nuncupative  -  16.  59 

omission  in  a,  may  be  supplied  by  nuncupative  codicil  -  -      6 

cannot  be  made  irrevocable  -  -  -  -  13,  14 

republication  of  a  former,  shall  re-establish  it  -  -  -     28 

what  shall  be         -  -  -  28,  29 

of  a  woman  afterwards  marrying,  not  revived  by  husband's  death  21 

lost 71.77 

illegible  by  accident  -  -  "  -  -  -     71 

suppressed     -------       120.  128 

unknown        --------  120 

of  a  party  who  has  been  long  absent  -  -  -  -    70 

transmission  of  a  copy  of,  from  Scotland      -  -  -  -     ib. 

from  Ireland — from  East  or  West  Indies  -  -  -  -     71 

of  property  in  the  plantations  .  -  -  -  71,72 

made  in  a  foreign  country — in  a  foreign  language      -  -  -    72 

memorial  and  registry  of,  affecting  lands  in  Yorkshire  or  Middlesex  246 

Windows — window-shutters  -  -  -  -  ■  -197 

Woollen,  forfeiture  for  not  burying  in  -  -  -  -      261,262 

York,  custom  of  the  province  of      -  -  -  -  -   400,  et  seq. 

where  it  shall  be  controlled  by  that  of  London  -  -  -  402 

custom  of,  and  of  London  in  the  main  agree  -  -  -      402,  403 


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